Baroness Amos: My Lords, I rise to pay tribute to Lord Cockfield, who died on Monday. He was born in 1916, and was educated at Dover Grammar School and the London School of Economics. In 1938 he joined the Home Civil Service, starting at the Inland Revenue. He was called to the Bar in 1942.
	Before joining this House, Lord Cockfield had a long and distinguished career, holding many posts across government. He was considered to be one of the greatest authorities of his generation on taxation, as well as being a statistician of renown. He was raised to the peerage in 1978, and very quickly joined the Government Front Bench. I am told, and I am sure that many Members of longer standing will remember, that he was a notable performer at this Dispatch Box, with his own particular manner of delivering answers.
	In Government, Lord Cockfield first served as Minister of State for the Treasury and then as the Secretary of State for Trade from 1982 to 1983. He held a further Cabinet post as Chancellor of the Duchy of Lancaster from 1983 to 1984.
	He was Vice-President of the European Commission between 1985 and 1989 and, rather unexpectedly, became a champion of the European project. He is regarded as one of the principal architects of the European single market. He continued his interest in the European Union when he returned to this House. In a debate on enlargement of the European Union in December 1999, he said:
	"The successful enlargement of the European Union to comprise virtually all the countries between the Atlantic and the borders of the former Soviet Union would be the greatest achievement of the 21st century".—[Official Report, 7/12/99; col. 1213.]
	I am sure that he was glad to see so much of the project completed in his lifetime. He is survived by a son and a daughter and I believe that the whole House will wish to join me in sending our condolences to them.

Lord Strathclyde: My Lords, I am delighted to follow the noble Baroness the Leader of the House in paying tribute to the late Lord Cockfield, a colleague whom Peers on all sides viewed with affection and respect. The noble Baroness set out the facts of an extraordinary career. It is hard to overestimate the scale of the noble Lord's talent. He started life with no advantage. Indeed, his father was killed before he was born. He joined the Customs as a junior clerk at the age of 17, but he became a tax professional with a distinguished Civil Service career, a lawyer, an industrialist—the finance director, managing director and chairman of a FTSE 100 industrial company—and a statistician, becoming the president of the Royal Statistical Society, all before entering Parliament at the age of 62. He was that very rare thing, one who makes the transition from the world outside politics to Parliament and government, and does so with lasting success. His oratorical style—some said he spoke like a Royal Commission report—can more politely be described as stately, but his words were almost invariably those of a statesman.
	For a decade, he was a leading figure in British and European politics. He was a Cabinet Minister in days when there were three or four Cabinet Ministers in your Lordships' House, and government was no worse for that. Then he was Vice-President of the Commission from 1985 to 1989. His name will be linked indelibly with the single market in the EU, the blueprint of which he in effect wrote himself. Whatever our views of the twists and turns that the EU has since taken, the single market is a giant achievement. It would not have happened but for his energy and vision, for which he will be long remembered.
	The noble Lord sadly lost his wife soon after leaving politics, but he attended here regularly until very recently and in his 90th year. We always welcomed him, and we benefited from his deep wisdom. Our sincerest sympathies go to his family. They should feel honoured by his memory.

Lord Wallace of Saltaire: My Lords, we on these Benches associate ourselves with the memory of a wonderfully anti-political politician. He was one of the most understated people, whom one nevertheless heard talk with an underlying passion about political issues. As I got to know him in his later years, I found that you had to listen very hard to catch the underlying humour of some of the things that he said. He loved to pretend that he was dry and technical, even when he was not.
	He was chairman of the Price Commission under the Conservative Government of 1970 to 1974. My noble friend Lady Williams has reminded me that she re-appointed him when the Labour Government came in because, although he was clearly a Conservative, he was recognised to have an entirely fair-minded and balanced approach to competition.
	The most remarkable memory of him was his achievement in introducing the single European market. It was perfect for him because the 1992 programme was a collection of extremely dry and technical issues, but he managed, with the help of President Delors and others, to package them into a politically saleable programme.
	He had a remarkable rapport with Jacques Delors as President of the Commission—remarkable because they were such very different characters, who nevertheless got on extraordinarily well. Madame Delors and Monica Cockfield also got on remarkably well in that peculiar world of Brussels. There were accusations in the British press that he had gone native when he went over there. He had not, but he did see that there was a problem to be dealt with and that it was his job to deal with it.
	He was much more adventurous than many people knew. He once told us that he and wife had gone around the world in 1968 on a cargo boat and, when they were in the South China Sea during the Tet offensive, their cargo boat, like others in the area, was asked to call in and stand off the Mekong Delta just in case there were large numbers of Americans to be evacuated from the mainland. So their journey was rather delayed.
	He had a passionate commitment in his later years to informing the younger generation about the real benefits of European co-operation, and the Lady Monica Cockfield Trust provided, in a particularly close relationship with the University of Sussex and the Sussex European Institute, scholarships for young British students to learn more about Europe. I enjoyed many conversations with him in this House and I, like many others, will miss him.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER (Baroness Hayman) in the Chair.]

Baroness Barker: Following what I believe was commonly considered an excellent debate on Monday, we return to detailed and important aspects of the Mental Health Bill. On Monday, Members of the Committee considered the purpose of mental health legislation. We had a long discussion on matters of principle. It was clear that, although we have deep differences of opinion about this legislation, there is commonality regarding the end that the Government and the Opposition seek; that is, legislation which is fair, transparent, and is trusted by those who are subject to it and those who have to implement it. One of the main reasons this amendment is tabled is to try to achieve that.
	I remind the Committee of our discussion on Monday. The Bill, as it stands, has a very wide definition of mental disorder. We heard why, unlike any other jurisdiction in the world, the Government are unwilling to accept any exclusions to that. As we shall discuss in detail, there is a very wide definition of what appropriate treatment for mental health conditions should be. That is the context within which we need to consider this proposal. Before a person is subject to compulsory powers under Part 2 of the 1983 Act, it would impose an extra condition that the person has impaired decision-making ability. It is important to set out at the beginning precisely what is meant by impaired decision-making ability. We may hear many Members of the Committee talk about capacity and capacity tests. It is important to draw a distinction here. I am sure that Members of the Committee will understand this, but for the benefit of those who do not I should make clear that capacity tests—I refer to the one that we are perhaps most familiar with as we debated it at length when we discussed the Mental Capacity Act—are usually measures of a person's cognitive ability; their ability to make a decision. However, Amendment No. 6 describes something different—impaired decision-making. A person may have the ability to reason and to make decisions, but by dint of their mental disorder those decisions may be unwise or impaired.
	I will try to explain this with the example of an older man whom I knew who had dementia. One evening he told me, at considerable length, about a film he had watched. He described it as a good political exposition of the position of working-class people in America and how they had suffered in consequence of the economic policies pursued by the Reagan Government. It was a cogent and persuasive argument which made me rather want to run off to, say, the National Film Theatre to see this really heavy film. The problem was that the actual film he was talking about was a light piece of comedy which I think the Americans would describe as a "screwball comedy". The person's cognitive abilities and capacity to reason were not diminished, but they were wholly and completely misplaced. One was able in that context to make a judgment that his decision-making ability was impaired.
	I hope that example enables your Lordships to draw a distinction. Many mentally ill people are very intelligent and retain an ability to make complex decisions but their overall ability to make decisions—particularly about their treatment—may be impaired as a function of their disorder. That is why Amendment No. 6 is not talking about the test of a person's capacity, as one would be under the Mental Capacity Act.
	Why should we include such a provision in the Bill? As we said on Monday, many thousands of people who are mentally ill are subject to compulsory treatment. Yet many of them retain full decision-making capacity and an ability to make decisions about their treatment, including the refusal of treatment. It is an omission in the 1983 Act that they do not have the power to do so. Any other patient subject to other forms of medical treatment has such a power. Any other individual with capacity has the right to refuse medical treatment however ill-advised it may be, even to the point of refusing treatment that would sustain their life or would almost certainly bring about death. For centuries we have bracketed all mentally ill people as being unable to make those decisions, but it is not true.
	In mental health, as in all other aspects of healthcare, there is a growing recognition that the involvement and compliance of patients in their treatment, and in maintaining their treatment regimes, rests on their ability to be part of the decision-making about it. It is therefore something of an anachronism to say that people who are subject to mental health treatment should not have that ability. It also causes clinicians problems.
	There is another reason why we believe that this amendment is right at this time. It has been said by some of the small handful of psychiatrists who oppose the views of their royal college, and who are deeply supportive of the Government's existing proposals in the Bill, that it would be impractical or impossible for them to implement an assessment or test of a person's daily decision-making ability. I believe that that statement is wildly untrue. Not only professionals in the mental health system but many other professionals, such as policemen, social workers and those who work with prisoners who have mental disorders, make judgments on a daily basis about people's capacity. They have a finely tuned sense of people's capacity to understand, to retain information and to make decisions about their own care. That is part of good practice.
	Furthermore, it is becoming more common in mental health to use tests of capacity. That is one of the reasons why they have been used in Scotland. The test for significantly impaired decision-making is a feature of Scottish legislation. It is something that clinicians need to do before reaching decisions on compulsion and treatment. We have had the concept of capacity in mental health legislation before. It is an important and accepted factor in decisions about ECT and psychosurgery.
	Why do we believe that it is important to include such provision in the legislation? If people have the right to have their decision-making ability taken into account, and therefore retain some decision-making capacity about their treatment, they will be more likely to present themselves for treatment in the first place and to comply with it once it is recommended for them. That probably also applies to people who have fluctuating capacity. It is well known that in many mental conditions a person's capacity to make decisions changes. Clinicians have recognised and have had to deal with that fact for many years. Clinicians are not in the habit of making an assessment of a person on a particular day, assessing their capacity to make decisions at that moment and promptly ceasing all treatment at that point. They usually continue to monitor people over a period of time. They take into their decision-making their calculations on what someone's ability to make decisions would be in the future.
	It has been alleged that people on this side of the House are unnecessarily antipathetic to the use of compulsion, but it is not true. We accept that there always has been and always will be a need for some people to be treated under compulsion. However, many of us who served on the Joint Scrutiny Committee spent a considerable time listening to service users. Anyone who did so could not fail to be moved, or at least to come away with knowledge of the extent to which compulsion affects patients. It is a frightening process to go through. Patients talked to us about being subject to compulsory treatment in crisis situations, but they also talked about the effect of being subject to compulsion on a more routine basis. They said that once you have been subject to compulsion, your ability to make decisions about anything, no matter how minor, can just go. Frustration and rage builds up in people when they have been put into a position where they are not permitted to make even small decisions which in any other circumstances would be deemed reasonable. That is not only a source of immense frustration but it leads in some cases, according to our witnesses, to violence and non-compliance with treatment.
	I am grateful to the royal college, which has furnished us with research into the issue of impaired decision-making. The research was conducted by Professor Szmukler, dean of the Institute of Psychiatry at King's College, and involved patients on medical wards at King's College and 112 psychiatric patients at the Maudsley Hospital. He found similar percentages of patients with impaired capacity in both locations. He did not find a significant difference in the reliability of the capacity assessments that had been made.
	There are two reasons to adopt the proposal in Amendment No. 6. From April 2008 practitioners will be forced to assess a person's capacity because the Mental Capacity Act will come into force. They will have to decide, on a daily basis, whether those who present to them should be treated under the Mental Health Act or the Mental Capacity Act. There may be voices from a small element of the profession saying that that is not common at the moment, but it will be—just as it will for all the other professions that will have to implement the Mental Capacity Act and that have been developing their skills and training over the past two years.
	The final reason why we should adopt the proposal is that it will force clinicians to focus on the issue of a person's capacity. I am persuaded that causing them to do so will better enable them to identify the patients who do not recognise their own illness. I am thinking in particular of patients who experience hallucinations and believe they hear voices telling them to do things. Patients who undergo that sort of experience, who know that it is part of their illness and have a degree of decision-making capacity, often present themselves for treatment because they know that they are becoming ill. Patients who experience such conditions but do not recognise them, and whose decision-making ability is impaired, often do not. Sometimes such patients present the most serious risk.
	Other provisions in the Bill extend compulsion. In the view of noble Lords on this side of the House, those measures are likely to make people fearful of approaching mental health services. I believe that this provision is an important safeguard. It is also an important discipline for practitioners which will require them to focus on the individual's capacity to make decisions. It will help to bring about a state of good practice whereby those who retain full capacity to make decisions will be able to do so. That will increase overall take-up and lead to greater safety and security. I beg to move.

Earl Howe: With this amendment we have reached a watershed issue. The challenge to the Government is straightforward. They have to justify why a patient with cancer, provided that he has capacity, may validly refuse treatment for that cancer, but a patient with a mental disorder who retains full capacity may not validly refuse treatment for the mental disorder, even though he may still validly refuse treatment for cancer. That is the first question that the Minister needs to address before any other.
	This amendment moves us into a completely new environment for the care of the mentally ill. It is an environment that reflects today's values, rather than the values of the past. I would characterise today's values as those which seek to put the patient at the centre of decision-making about his or her care and which shift us consciously away from putting mental illness into a compartment that is quite separate from all other illness. That tendency is what we mean when we speak of discrimination against those who are mentally ill, and it is exactly that discrimination which, when promoted and practised, leads to the stigma to which many noble Lords referred powerfully in earlier exchanges.
	I hope that all of us in this debate take as our starting point the firm conviction that compulsory powers should be used only as a last resort when people are very seriously ill. The idea that someone could be forcibly detained when he or she was not seriously ill is, I hope, anathema. If someone with a mental disorder has reached a stage where they are a danger to themselves or to others, it is axiomatic that their state of mental illness is serious. But this amendment takes us further. The noble Baroness, Lady Barker, has taken us through the amendment and the reasoning behind it. She has explained most cogently why a test of impaired decision-making makes sense. One needs to emphasise that the impaired decision-making should specifically relate to whether to accept care and treatment. Does the patient's mental disorder make him unable to take a rational view on that matter?
	The Government's central objection to a test of that kind is that there is no proven correlation between the severity of a condition and the loss of mental capacity. It is possible to imagine—one does not have to imagine it, because it happens—someone who poses a risk to themselves, but who also retains cognitive decision-making capacity. That is precisely why the noble Baroness was right to say, as I understood it, that a straightforward capacity test would not work in this context. A test of impaired decision-making, on the other hand, does not fall foul of that objection. The difference between capacity and the ability to take a balanced and rational decision about one's own care may be difficult to assimilate, but it is significant. You can retain cognitive capacity and, indeed, decision-making capacity, about many aspects of daily living—going out shopping, taking the car out, taking the dog for a walk or whatever—while nevertheless being unable to take a balanced and rational decision about your own care and treatment. The distinction takes us away from pure cognitive ability into the realm of the emotions—the way in which one sees the world. The concept of mental capacity does not deal easily, if at all, with the emotions. Rather, it is concerned with the ability to understand, retain and communicate information. Very many people with mental illnesses have no difficulty doing that.
	The British Psychological Society stated in its evidence to the joint scrutiny committee:
	"We believe that the vast majority of patients currently detained under the Mental Health Act (1983) who have serious mental illnesses would quite clearly be demonstrably and significantly impaired in their decision making because of their mental disorder. We believe that psychologists and psychiatrists already make these judgements frequently in their clinical practice".
	If there are individuals who are seriously mentally ill and who pose a risk but retain, nevertheless, decision-making capacity about their treatment—there may not be many of them—what are we to say? How should they be dealt with? My view is that if the risk they pose is to themselves, the law and the state have no business interfering in their lives; and if the risk they pose is to others, they are or should be the province of the criminal law. People who have mental illnesses know what works best for them and what treatments they absolutely cannot tolerate. Why should the law allow for their wishes to be overridden? Why should those people not be allowed to put up with the unpleasant symptoms of their illness if that is what they genuinely would prefer to do? What is the justification for making a distinction in law between the patient with mental illness and the patient with cancer?
	Those are the questions I posed when I began: they are the questions I again pose. The Minister should be in no doubt as to what we are saying with the amendment. We are saying that the law is out of date. We are saying that we have an opportunity to do something major to tackle the perennial and worsening problem of discrimination against the mentally ill. I hope that we can seize that opportunity.

Baroness Murphy: First, the noble Lord, Lord Rix, sends his apologies to the Committee. He is quite unwell and has gone for some tests. He has asked me to give his apologies for not being able to speak to the amendment about which he felt passionately.
	In adding my voice to the amendment—it is probably one of the three most important amendments we have tabled—I do not wish to repeat what the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, have already said. They have been eloquent in their statements and I fully support their arguments. I wish to talk about the clinical realities of daily life as a psychiatrist and why I and my colleague professionals believe that it is time to introduce this extra criterion. I shall mention assessing capacity and decision-making because I have heard quite a lot of nonsense talked outside the Chamber about the process; it is really quite straightforward.
	I also wish to mention the extraordinary impact on the culture of psychiatric practice which the current discriminatory legislation produces and, most importantly in this Chamber, why there are fears that this would lead to mentally disordered people being excluded from care and treatment. I believe that to be completely wrong. It is also extremely important in the other Chamber, whose Members receive many letters about people who it is felt might be excluded from care and treatment because of current proposals.
	The small country north of the Border, to which we referred on Monday, has already adopted this measure in its new mental care and treatment Act 2003 with no adverse consequences at present on the care and treatment of mentally ill people in Scotland. I accept that there is only a year or so of experience on which to judge but so far there are no great disasters.
	I do not believe that the amendment will change who is detained and who is compulsorily treated since by the time someone is sufficiently disturbed that they satisfy the criteria of detention—that is, that they have a disorder of a nature or degree which warrants detention in hospital and it is in the interests of their health and personal safety or for the protection of other people—the level of disturbance is such that in practice the majority of, if not all, patients who are assessed for a Section 2 order will have significantly impaired decision-making in relation to their care. That is why one is assessing them in the first place. The code of practice says that compulsory admission powers should only be exercised in the last resort. I think that we know that on the whole that is the case.
	In Section 3 a patient's condition must be sufficiently severe to warrant continued detention in hospital. Almost always the patient has continued impaired judgment about the short and long-term outcomes of any care plan, which will bring him fully within the Act if this amendment were to apply. That is as true of people with seriously abnormal disturbed personality disorders, as of people with psychotic illnesses and profoundly disabling neurotic disorders.
	We have already heard about Professor George Szmuckler's research at the Institute of Psychiatry, about the patients at King's and at the Maudsley, where it is clear that 85 per cent currently detained for treatment—and the assessments were done after the immediate period of admission—did not have capacity at all. That is using the much higher test. If we lower the bar and put the test further down to impaired decision-making, almost everybody would be included.
	I have often received letters from Members of the other place about difficult and challenging people, whose mental disorders give rise to a degree of mayhem in the community. Clearly, there are many such individuals. I think for example of people who cause a lot of concern, such as a young woman going around the community and perhaps setting fire to things, who is cutting herself, who is very disturbed and who ends up in A&E threatening to commit suicide. Such people do not get into hospital when they should. They seem to be in and out of casualty and causing great distress to their families and the community. Nobody can understand why they have not been admitted and detained.
	The young male stalker is another typical case which causes serious concern among everyone in the community. For some reason such people seem to get assessed but not admitted often enough, and yet there are concerns about when that will flip over into a serious problem for the young woman. Then there are the people in the community with other sorts of personality disorders who come through the magistrates' courts, such as persistent recidivist offenders with seriously disturbed personalities that are the bane of housing officers, who again seem to be constantly circling around.
	It has been suggested to me that these people are extruded because they do not fit the criteria of the Act and that these people would be removed from the Act by the amendment. I am absolutely clear that that is not true. If you look at these people and assess their capacity on impaired decision-making, you would find that they would fall quite well inside the Act.
	The current doctrine of suspension of all rights to autonomy survives as the sole distinguishing feature in discriminating patients; the rights of patients detained in a mental hospital separates them off from all other occasions when they are being offered medical care. That encourages psychiatrists and psychiatry teams to behave in not exactly an authoritarian fashion—in fact I often wish my colleagues were a little more interventionist and authoritarian—but rather in a culture of "take it or leave it. We have the upper hand. We don't need to consult or take patients' capacity or views very seriously". Patients believe that they have no rights of any kind when they have recovered, and, even when they should be returning to their old selves, they believe that their rights to autonomy will never be regained.
	This amendment would ensure that those rare people who have full decision-making powers could not be forced to have treatment. It would signal a change in relations between civilly detained patients and clinical services, which would be of immeasurable benefit in giving patients confidence in the system. Once again, I refer to the over-representation in our mental health system of black and minority ethnic communities, especially young black men. The new clause would give them some small confidence that they would be treated on the same lines and receive the same sort of benefits as people going into hospital with any other illness.
	I turn to the assessment of mental capacity and decision-making and congratulate the noble Baroness, Lady Barker, who gave a marvellous example of how it works. It is a regular function of health professionals in relation to consent to treatment for all illnesses, physical and mental. Capacity is often thought of as a matter of intellectual reasoning or cognitive powers in relation to a specific decision. Of course that is an important aspect, but sufficient cognitive capacity—if you like, megabytes of brain computing power—is a prerequisite for decision-making but by no means the only or, indeed, most important aspect of it.
	I want noble Lords to consider for a moment the big decisions that they have made in their lives and to ask themselves whether their decision to marry, to have children, to enter a particular career or profession—indeed, how they framed their will—was made on the basis of intellectual judgment or whether emotions, personality and the timing of the decision in relation to other events in their life had a major impact. I used to do a lot of testamentary capacity work, the difficulties of which, while often about assessing cognitive capacity for decision-making on intellectual grounds, was also extraordinarily often about whether undue influence and disturbed affect may have influenced the decision. The test of impaired decision-making has a lower threshold, is a more flexible test and is very familiar to professionals as a concept. It is what most psychiatrists do every day and what most doctors do every week in treating mental disorder.
	I have heard it said that capacity can fluctuate. There is only one condition in which it fluctuates dramatically: acute toxic confusional states or delirium, where one can be mentally normal at one point in the day and profoundly comatose at another. There is not a great deal of fluctuation, there is gradual improvement in people with mental disorders who are in receipt of treatment. Rather as you do not accept one good sugar level as evidence of control of diabetes in someone with the condition, you do not accept one piece of evidence of full capacity as evidence of ongoing capacity and proper decision-making capacity.
	George Szmuckler's research demonstrated that two doctors had very high rates of agreement on who had capacity and who did not. In other words, those decisions are not difficult to make. After all, that is what we are trained to do; psychiatric teams do not have that difficulty. Genevra Richardson concluded in her report that non-discrimination on grounds of mental health was central to provision of care and treatment for those with mental disorder. She stressed her committee's desire to encourage the treatment of mental health according to principles similar to those that govern the treatment of physical ill-health.
	That is not to say that mental disorder is not different from physical disorder—of course it is in many respects—but the same principles of autonomy apply. Respect for patient autonomy is total in every other field of medicine. The Mental Capacity Act enshrines that and is a fine example. We have already heard about the dying cancer patient. We must let patients gamble with their own health and safety. Cardiac patients continue to smoke and liver patients continue to drink—against advice, perhaps, but there is no law against it—but we do not allow people with uncontrolled epilepsy to drive because the safety of other people is at stake. We are talking about people's choices about their own health when they have full capacity. In mental health, we throw out the basic principles even when people are perfectly capable of choosing treatment for themselves and are no danger to others. This is all about patient autonomy—the freedom to decide for oneself whether to accept medical help if one retains decision-making capacity. That is fundamental to patients' rights and is at the core of this legislation.
	This is not simply an academic debate; it has important clinical consequences. A statutory framework is operated daily by health and social care professionals, and works smoothly only if it reflects the values of those who are going to use it. If it contradicts those values, its chances of working will be significantly reduced.
	Secondly, the conditions for the use of compulsion lie at the heart of the Bill, so we must get them right. They have to be workable and predictable.
	Thirdly, and finally, we must have a Bill that works alongside other relevant legislation, in particular the Mental Capacity Act. I know that the Government are concerned that it is premature to embrace a fundamental shift in the criteria for compulsion and that, inevitably, the doctrine of necessity will triumph, no matter what. I do not believe that that is true, for the reasons that I have outlined today, but what a signal it would send to end the stigmatising discrimination of the mentally ill.

Lord Owen: I support the proposed new clause but do not want to reiterate too many of the arguments that have been advanced by the four previous speakers, almost all of which I agree with.
	I should add the disclaimer that I no longer pretend to have any serious neurological or psychiatric knowledge. The previous speaker was, of course, a very distinguished neurologist. I approach this subject more from a decision that I took in October 1975 to review the then mental health legislation. It was a long time until we eventually got the Mental Health Act 1983. I confess that I am not particularly proud of that Act. It has some quite serious deficiencies, and the Government can claim considerable credit for correcting many of those deficiencies in the Mental Capacity Act.
	In our debate on 8 January, the noble Lord, Lord Carlile, mentioned that the Mental Capacity Act was,
	"a close cousin of that legislation".—[Official Report, 8/1/07; col. 37.]
	That is right. It is also a close cousin of this legislation as well as of the Children Act. We cannot pass the Bill without constantly reviewing the Mental Capacity Act. In some ways, it is a pity that it is not all included. Nevertheless, we now have to face the reality. We have to deal with this Bill as it is and try to make it as good as we can.
	The noble Baroness was slightly too gentle on the question of the Scottish law. Historically, social legislation in England and Wales has been greatly benefited by the fact that, on a number of occasions, the Scottish legislation has been in advance of us and we have learnt from it. I never forget taking the Children's Act through Parliament in 1975 and finding how much we were influenced by the fact that Scottish legislation had already been there. I know that the argument may be used that we do not yet have enough experience there, but we do have experience. Scotland would not have legislated for this without very careful consultation with all aspects of the mental health services in Scotland, which are, on balance, better than those in England and Wales. We have to recognise that. That Scotland already has this provision is an almost overwhelming argument for accepting it. It would be absurd to pass this Bill, with the Mental Capacity Act in existence, and not grapple with this problem.
	The noble Earl, Lord Howe, succinctly drew the distinction between why it would probably not be right in this circumstance to invoke the exact terms of the Mental Capacity Act and why we should set a slightly lesser test. One has therefore to look at that in impaired decision-making. I am very much influenced by the noble Baroness, Lady Murphy, with her practical experience. She was right that it will not make a dramatic difference—it will obviously influence a few cases—but it will make a dramatic difference to how this legislation is seen. I listened to most of the debate on Monday. I had some sympathy with the Minister on principles. It is not an easy issue, because one is grafting principles on to an amendment and on to the 1983 Act, although I hope that he comes forward with some modification and some principles that are perhaps not so detailed. I understood his later arguments—in particular those which I missed but which I have read—as to why the Government were reluctant to do this, but I hope that we will not go through this legislation being told that we have to resist all amendments. This is not wonderful legislation. The Minister has a deserved reputation in this House for being an expert in mental health and as somebody who listens. I shall not belabour the point, because it usually means that one is trying to use this as an argument for one's own. I would contemplate voting against the whole Bill if no changes are made to it. I was 26 years an MP. I know that what has driven this legislation is a great deal of dissatisfaction among individual MPs and a feeling of despair that the system simply cannot cope with some of these cases. Unfortunately, we are giving MPs the impression that this legislation will deal with this problem. It may or may not do so; it will be very much on the margin whether it does so. It will not distress me tremendously to see this Bill lost again. The Government should recognise that they have already lost Bills in this area and they could well lose this Bill. They will have to show a good deal of feeling and understanding for expert opinion. The Royal College of Psychiatrists deserves a serious hearing on this Bill. Where it has doubts and where it wants amendments, it should be listened to with great care.
	This is a crucial new clause to be added to the Mental Health Bill. If the Government were to reject it, I certainly would look much harder at the balance of the Bill as a whole. This Government of all Governments should have no reason to reject the clause. They are the sponsors and creators of the Mental Capacity Act. It is a perfectly logical extension of that Act that this clause should be in the Bill. I therefore urge the Minister to accept it and hope that he will do so. He may of course want to make drafting amendments, and I am sure that whoever has proposed the Bill would not mind that in any way. However, I look on this as a crucial issue.
	I say in response to all those headline stories which preceded this Bill and the public relations coup of having inquiries announced in the Sunday newspapers that we are in grave danger of kidding ourselves that the passage of this Bill will deal with this terrible problem in a community of a minority of people who cannot be coped with.
	There is out there—in the medical profession, particularly psychiatry—a real feeling that this is a Home Office driven Bill, which is intended to give the impression that it will solve a problem, when we all know in our heart of hearts that the problem is resources, the problem is the amount of time we can spend on these things and the problem is the problem. There may not always be solutions to this. We have to accept that in a community there will always be people who do not fit, who are very difficult to handle, and who, particularly as they grow up, become a tremendous burden on their parents.
	Members of Parliament get immensely frustrated—I have been one—but sometimes, however, you have to tell people that there is not always a solution to things. The danger of this legislation is that it is pretending to do things. There is too much pretence around in politics at the moment. I hope that this new clause is accepted.

The Lord Bishop of Southwell and Nottingham: We on these Benches are not just mere academic observers of legislation such as this. We care for parish clergy, who are on the frontline, working collaboratively with those in the healthcare professions, in giving co-operative care and treatment to those who are mentally disturbed and mentally ill. I welcome the concept of "impaired decision-making" as a more flexible criterion than "incapacity". I note that it has widespread support in psychiatric circles as a useful addition to the conditions for compulsion. My anxiety is that its operation could prevent timely assessment or treatment of people, whose condition posed dangers, because they were judged not to have reached the threshold of significant impairment. The answer to this appears to be that significant impairment is assessed partly in terms of the seriousness of the consequences of the impairment. I wonder if that gives a sufficiently clear and objective criterion. With that reservation, however—it is more of a question than an assertion—I support this amendment.

Lord Alderdice: One of the many aspects of my good fortune in being married to my wife is that she is also a doctor. We can talk about medical things and share rather different practices because she is a consultant pathologist. At this time, she is likely to be looking down a microscope, deciding whether a particular biopsy is cancer. Why? Because when the surgeon operates, despite the fact that he has seen the patient and done an assessment and so on, he will not be able to be completely sure what he is dealing with. It might or might not be cancer or it might be a different disorder. His treatment will be dependent on the diagnosis. When she looks at it, she may well say, "This is a bit of a puzzler, I will talk to one of my colleagues, or send it off to an expert somewhere else". Why? Because it is not always easy to know exactly what you are dealing with.
	All of us expect at some point in our lives expect to call on the services of people such as my wife, her surgical colleagues and others. We know we will suffer from disorders of various kinds and that we will need that help. When a diagnosis of that kind is made, a good surgeon will say, "Look, there are a number of possibilities for the treatment. Some of them have a fair possibility of success, some are pretty slim, and there are a lot of side-effects. You need to consider whether you want to go through all of this for the potential benefit". One of my friends has recently gone through this and decided against chemotherapy. As a doctor, she weighed up the prospects, the costs and the side-effects, and decided, "No".
	When I go home to Belfast, I will see a patient who has been detained in hospital on my advice for some time. This is because she has been trying to kill herself. I believe that the balance of her mind is so disturbed that she cannot really think clearly about that issue. She can think clearly about lots of other issues, but not about that one. I am quite clear in my mind that that is the appropriate thing to do, even though it means that I am setting aside —but not riding roughshod over—her right and freedom to be out enjoying Christmas with her family and so on. This is because, frankly, I suspect that she would never have come back from Christmas.
	That is an easier case but there are lots of diagnostic decisions that are very difficult. This is not about a small number of people who are very distant. One in five to one in seven of us will consult psychiatrists during our lives—that is at least one in every one of these Benches. That excludes all those who will not get to see the psychiatrist because of the waiting lists or whatever.
	The Bill talks about the fact that from time to time—this will affect people in your Lordships' House and their families—a decision will be taken not to give you, your wife, husband, daughter or son the right to decide about your own freedom and liberty and the kind of treatment meted out to you. That might involve drugs, which may have serious side effects—some permanently disabling if you are sufficiently unfortunate—but if your psychiatrist thinks you should have them, you should have them. It may involve various other psychological treatments, which sometimes people think of as reversible, but not all treatments, even of a psychological kind, are necessarily reversible. It may even simply mean being kept away from your family and your wife, which could have an impact on your personal life, social relationships, career and so on.
	All those things would be done against someone's will. That is a serious thing. All of us would agree that one must think seriously before doing that. I think that in most cases my psychiatrist colleagues do. There are many situations where they decide not to take something up because they think that, on balance, they will not really be able to help a person and resolve the problem, and that the treatments available will not make much difference. However, the Bill has been introduced because there are people in the other place, in government and elsewhere who say, "There are problems out there, and psychiatrists are opting out of their responsibility and not dealing with all these people". Quite often, psychiatrists do not deal with them because they know that they do not have much to offer to resolve these problems. But they are being told, "No, you have to take them on. It doesn't matter whether your treatment will help or be effective. It is up to you to do something about it, and if you can do nothing except keep such individuals somewhere then do that, even though that means not having beds available for other people whom you can treat but who do not require to be brought in on a formal basis".
	It is not as though it is easy to make a diagnosis. I mentioned the difficulties of my wife and her colleagues on the organic side, but it is no easier in psychology and psychiatry. At times, the patient has every right to disagree with a diagnosis; sometimes the psychiatrist will review it or a colleague will offer a second opinion and suggest that the diagnosis be looked at again. That is perfectly right and proper. A degree of humility in psychiatry, medicine and maybe even in politics is no bad thing.
	It is not just a question of a disagreement between the patient, or the patient and their family and their medical attendant. Psychiatrists do not always agree with one another. I do not agree with some of my colleagues about the kinds of treatment they undertake with particular patients at particular times, and perfectly properly so, because these are not simple, black-and-white issues. But when it comes to the law and having to impose something, the issue is black and white, whatever anybody thinks.
	There are circumstances where, despite all these difficulties, one must shoulder responsibility, struggle with the emotional and intellectual challenge, and say, "I'm afraid that, however difficult it is, we have to keep you in and approach the treatment in this way, even though I know you don't think it's helpful". When do those circumstances arise? Not when a person disagrees, has inadequate information or does not understand the arguments. Many decisions made in this place and the other place affect people's lives and deaths; sometimes they are not very wise and in many cases they are not very well informed, but that does not mean that they should not be made. Where it is judged that the balance of someone's thinking is impaired, where their capacity to think—that fundamental thing about a human being—is disturbed, that is a reason to set aside the person's decision-making capacity.
	This provision recognises that of course such circumstances arise but says that outside those circumstances we should proceed with greater humility, both about the responsibilities we undertake and about our capacity to resolve all these problems. If we do not, we could end up making a bad situation very much worse, not out of malign intent but out of a belief that we can do far more than is actually possible to solve some of these problems.

Baroness Carnegy of Lour: I have a question for the Minister, following what has been said about the comparison between the Scottish Act, which I have in front of me, and the Bill. The Explanatory Note to Chapter 6 of the Bill, which is about cross-Border transfers, states:
	"Transfers are only undertaken when they are in the patient's interests".
	It then explains what a transfer might be: someone would be moved from over the Border because he would be nearer his family when he was detained.
	It may well be, as I see it, that a Scottish patient will have been admitted because his ability to make decisions about the provision of medical treatment is significantly impaired. That is one of the conditions that the doctors must fulfil before that person is admitted. The person who is admitted for that reason is then transferred south of the Border where—because, as the noble Lord says, such a provision would undermine the entire Bill, although it does not undermine the Scottish Act—he would have been admitted for an invalid reason. Will he then be allowed out in England?
	After listening to this debate, it is clear to me that there is a major difference between the two sides of the Border. If the Minister cannot answer that question now, would he look into it? It seems that this will happen. I may be wrong, but I have been listening carefully, and the more I hear, the more the two pieces of legislation sound different—as will be the justice which people receive. That Scottish patient might be released in England, whereas in Scotland it was thought that he should be detained.

Baroness Scotland of Asthal: My Lords, with the leave of the House, I would like to repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
	"I would like to take this opportunity to update the House on the backlog of unrecorded overseas crimes committed in Europe by British nationals. I intend to outline the situation up to May 2006, when the Association of Chief Police Officers became the lead organisation. I am treating the subject very seriously indeed."First, the situation to May 2006. Since 1959, there has been a Council of Europe convention on mutual legal assistance which established the expectation that the more than 40 member countries of the EU convention would inform each other of criminal convictions of their citizens while in another member country. This has been the situation from 1959 to last year. This system had a number of very grave weaknesses. First, implementation was patchy across Europe. Secondly, much of the information was poor quality—for example, on some occasions, just a name. The process for handling these notifications when they arrived in the United Kingdom was fragmented and piecemeal."There were, therefore, fundamental flaws in the sending and review of information. It was agreed that this situation should be improved at a European level and, in 2005, a European Union Council decision made it mandatory for all member states to have a central authority in each country for receiving and sending such information to counter the fundamental flaws of the prevailing systems. It was decided by my predecessor, in my view completely correctly, in March 2006, that the central authority for this country would be the Association of Chief Police Officers. I think that I am correct in saying that we were the first European nation to tender and set up a central authority in the form of ACPO to do this. Their team was operational by May. "Secondly, the current situation. Since May, ACPO has sifted through all the approximately 27,500 notifications and carried out a priority risk assessment. This identified 540 most serious offenders by the police's own definition. All the notifications relating to the most serious offenders which had enough information to be entered onto the police national computer and which were not already on the computer as a result of Interpol work have all been put onto the police national computer. Together, that means 260 of the 540 serious notifications are on the PNC. The remaining 280 cannot be entered on the police national computer and are the subject of further inquiries to the notifying country to get more details to try to establish the identity of the offender. I should make it clear that these 280 are not necessarily notifications from May last year, or even since this Government have come in. We are having these checked."Thirdly, the actions I have asked to be taken. As the House will know, I regard protecting the public as my highest priority. I therefore consider the past failings in the system to be a very serious matter. As I said, I regard the response and decision of my predecessor as the correct response. However, I also believe that the system now operating puts responsibility in the right place. I am grateful to the Association of Chief Police Officers for the action they have taken and their assistance this morning."I have today met Ministers and my officials, the President of ACPO and the Chief Executive of the Criminal Records Bureau. I have asked ACPO for an assurance that every one of the most serious offenders that it has identified and on whom there is sufficient information has now been entered on the Police National Computer. I have been given that assurance."Let me set out what has been done in the past 24 hours. I have asked the Permanent Secretary to set up an inquiry into the Home Office's handling of these notifications. This will include a chronology of events, the practices and procedures in place at different times, whether appropriate action was taken and the lessons to be learnt. I have asked that every effort should be made to complete this inquiry within six weeks. "In addition, I have asked my officials, ACPO, the CRB, and the Probation Service, in liaison with other departments, to ensure that all appropriate public protection steps are taken. In particular, the Criminal Records Bureau will be checking whether there are any disclosures to employers in respect of the most serious offenders who have been identified that ought to be looked at again in the light of this new information. I expect to have this information in a matter of days."I have also asked the police and probation services to ensure that all sex offenders who have been identified through this process are subject to appropriate monitoring in line with the public protection arrangements that would be expected if there had been a conviction in this country."Finally, I have asked ACPO and the CRB to set and accelerate the timetable to process the remainder of the backlog, including the less serious offenders. I have asked that the process for these less serious offenders be completed not in 12 months but within three months with the extra resources I have provided."As I hope is now clear to the House, this is a problem that was some years in the making. By May 2006, a better system was operational. I take full responsibility for ensuring that this new system operates effectively to protect the public and that the lessons of past failings are properly learnt".
	My Lords, that concludes the Statement.

Baroness Scotland of Asthal: My Lords, I will seek to deal with each of those issues in order, if I may. First, on the knowledge of the matter under inquiry, none of the Ministers knew of the precise problem identified. What was known prior to May—this is the reason why the then Home Secretary, Charles Clarke, took the step that he did—was that there was an issue about how we should better manage information that had been coming on an ad hoc, voluntary basis and so he set up a proper system to ensure that that which had gone before was changed and put into proper order. As my right honourable friend the Home Secretary said, that was appropriate and proper.
	To take up the point made by the noble Lord, Lord Carlile, when the issue arose as to which body should be appointed to be the central authority, a number of entities were able to tender. ACPO submitted a tender and succeeded in getting this role. The main reason for that, as noble Lords will appreciate, is that the police national computer, on to which information is put, is very much within police control, and it was thought that this was the most appropriate opportunity and that ACPO was the most appropriate agency to deal with it. There is no suggestion that that was not the right decision to take because of the very close working relationship between the police and, indeed, the CRB.
	On the numbers involved, the ACPO evidence to the Home Affairs Committee was that there was a backlog of 27,500 criminal records, and that notifications were received. ACPO has also confirmed the breakdown of the offences. We were told that, among the serious offences, there were 25 rapes, three attempted rapes, 29 paedophiles, 17 other sex offenders, five murders, nine attempted murders, 13 manslaughter convictions and 29 robberies. We are entirely reliant on the information that ACPO gives us, but we have been assured that those figures are correct.
	The police are looking very carefully to identify cases in which we simply have a name. I do not at this precise moment have a case-by-case breakdown so that I can tell the noble Lord, Lord Carlile, that there are X number of cases in which simply a name was put forward and that there are Y number of cases with an address. We understand that some of these notifications were not made in English, some did not have the full address, and some did not form a part of a tight record. We therefore have a very broad spectrum of information that must be looked at, and I am assured by information that ACPO has given to us that in all those cases where it has been possible correctly to identify the individual concerned, that individual has been placed on the police national computer. As I said when I repeated the Statement, the CRB has made efforts to check whether it has received requests for information on any of those people and whether that has, or would have been, altered by it. Those inquiries are currently under way and, as I indicated in the Statement, we are hopeful that the CRB will be able to give us information on that by the end of the week.
	On the other questions asked by the noble Lord, Lord Carlile, noble Lords will know that we have been pursuing the issue of British nationals who have committed offences in Europe with some vigour with our European partners. We have asked on several occasions how we can better manage data between ourselves and others. Noble Lords will be aware, for example, that only three European members—the UK, Ireland and France—have a sex offenders register, and we are exhorting others to follow our example.
	On the information that we give to other EU and Council of Europe countries, we endeavour to give as much information as we can—indeed, all the details that would enable the proper identification of individuals whom we know about—to other member states. One of the points that ACPO made in evidence to the Select Committee yesterday was that we are still receiving inaccurate and inadequate information from many of our partners so that, even now that we have a new central authority, it is often difficult to identify correctly those who have committed offences in another country and who are returned. We are making strenuous efforts to correct that. My right honourable friend the Home Secretary has made it clear that he will continue to raise this issue with his counterparts in the Justice and Home Affairs Council.
	We have taken these issues very seriously. I can assure the noble Lord, Lord Carlile, that the three-month review will not be a fig leaf. These issues have to be, and will be, pursued. My right honourable friend the Home Secretary has taken responsibility for so doing.

Lord Morris of Aberavon: My Lords, my sympathies are with the Home Secretary, who faces another shambles in his office. When Dr Reid went to the Home Office and found it, in his own words, "not fit for purpose", did he ask his Permanent Secretary whether they had the faintest idea of any further skeletons in the cupboard? If Mr Andy Burnham, the then junior Minister in charge of records, was not told of this problem, who knew in the Home Office and at what level were they?

Baroness Wilkins: The amendment addresses the need for reciprocity, which was argued for so cogently in our previous debates on principles. It is supported by the Disability Rights Commission and the Mental Health Alliance. It will implement the recommendations of the Joint Committee on the draft Mental Health Bill that public services should assess and seek to meet the needs of people with mental health problems. Its aim is to ensure that people get help before they reach crisis point, and to eliminate the inequality that people with mental health problems in England and Wales face by comparison to mental health service users in Scotland, as has been so powerfully exposed today.
	The Scottish reform of mental health law recognised that rights to assessment and support were a vital component of a modern mental health service. Surely today our mental health service should be designed to support mental well-being and be geared towards prevention rather than focusing on arrangements for the use of compulsory powers, which should be a matter of last resort. Currently, people with mental health problems have no right to assessment or support for their mental health needs. This amendment would give them the right to a comprehensive assessment. Carrying out such an assessment would be a joint responsibility of the NHS and social services, mirroring existing good practice under the care programme approach. Advocacy and communication support should be provided as appropriate and clients are to be supported to define their own needs as far as possible.
	People with a mental disorder would then have the right to receive services to meet those assessed needs. A joint duty is again placed on the NHS and social services to determine whether the person's needs called for the provision of services by them or other agencies, such as the voluntary sector. It would then be their duty to make the necessary arrangements. In this way, the core standards and guidance set out in the National Service Framework for Mental Health would be supported for the first time by clear statutory entitlements.
	Services are to be provided not merely with a view to improving the person's mental health but also to promote their social development, dignity and well-being and to increase the extent to which they are able to enjoy the same dignity, choice and control as people without mental health problems. Support provided would also be geared towards increasing real opportunities for people to participate fully in work, family life, education and community and cultural life. In arranging support, the authorities must give full respect to the person's choices, aspirations and their cultural and/or religious beliefs. This would force gaps in the services to be addressed and ensure that people receive the help that they want when they ask for it. Moreover, it would prevent needless expenditure and high personal, social and economic costs further down the line.
	The case for such provisions is compelling. It is a case not just founded on the principles of social justice, equality and human rights but also rooted in practical knowledge of what kinds of approaches work best, deliver better outcomes and deliver greater economic efficiency over the long term.
	First, there is the argument for justice, equality and human rights. If you have a law under which a person can be deprived of their liberty, separated from family and friends, detained against their will and otherwise subject to compulsion on grounds of their mental disorder, that must be counterbalanced by rights for such a person to receive support and treatment that would prevent the need for such action arising. That principle—the principle of reciprocity—was strongly articulated and endorsed by both the expert committee and the Joint Committee. It speaks to the very basic values of fairness and decency which we as a country claim to uphold.
	Further, current law and provision has been demonstrated to produce gross racial inequalities, as we heard so eloquently argued by the noble Lord, Lord Adebowale. People from black African and Caribbean communities are more likely to be diagnosed with psychotic conditions and treated using medication of a higher dosage and are 44 per cent more likely to be detained under the Mental Health Act compared to other patients. My amendment would help address that by decisively breaking the circle of fear that prevents people from black and minority ethnic communities seeking the help and support they need, when they most need it.
	Equally, if we are concerned to uphold the human rights of everyone in the community, not just the person with the mental health problem, then we need a statutory framework that maximises the likelihood of people with mental health problems making a positive contribution to society through work and learning, successful parenting and cultural and community activities, and at the same time minimises the impact of mental disorders on families and the wider community. As we know only too well, mental ill health can have an appalling impact on carers, family and society. Not only are carers at greater risk of developing mental health problems themselves and experiencing major social and economic inequalities, but families may also have to face the loss of a loved one when someone with a mental disorder, who has failed to get the treatment and support they need, becomes violent.
	Lesley Savage, mother of Daniel Gonzales, who was convicted of killing four people in September 2004, said in her statement following her son's conviction that the family had made 100 attempts to get help at various times. She said that they could not list every phone call that went unanswered and every contact with a professional who told them they could not help. Daniel had been in contact with support services from his school days up to his conviction at the age of 24. But in all that time he received the help he needed—help that saw him begin to get well—for just one period of six months, between 1998 and 1999. The rest of the time his family was left to defend for itself. His family and the many concerned professionals were failed by a system that his mother describes as under-funded and incapable of providing joined-up care over any period of time.
	Secondly, I want to focus on the practical and economic need for this amendment. Current evidence tells us that most people with mental health problems receive too little help, too late. According to Rethink, 50 per cent of people who end up being treated without their consent have previously asked for help and been turned away. Yet treatment that people ask for is known to be much more effective than treatment given without someone's consent. We know too that most mental health problems go untreated. In 2000, less than a quarter assessed as having a neurotic disorder were receiving treatment of any kind.
	The Healthcare Commission recently reported that 51 per cent of mental health service users do not have access to crisis care out of hours. According to figures from the Department of Health, around 10 per cent of five to 15 year-olds have a diagnosable mental health disorder. Of those, 40 per cent are not in touch with specialist services. That is but some of the evidence of a system in crisis, and the resulting human, social and economic consequences are dire. They can be seen not only in reduced life expectancy and the staggering 80 per cent unemployment figure among people with mental health problems but also in the situation of carers who experience poorer health, lower earnings and pensions as a result of struggling without adequate support.
	The Sainsbury Centre for Mental Health has estimated that the current system generates a bill of £70 billion a year in costs of compulsory treatment, economic losses and premature deaths. That is how much we currently spend—or, rather, waste—because we have failed to provide support to people with mental health problems when they need it. The solution lies precisely in providing that timely and effective support. In order to ensure that that happens uniformly and that the investment is provided, we must quite simply legislate for it.
	There is plentiful evidence that the right to get treatment and support in the critical early phase of illness would have a profound effect on outcomes. As the organisation Rethink points out, early treatment has been shown to improve the long-term course of psychosis. It says:
	"If left untreated, there is greater disruption to the person's family, friendships, study and work. Other problems may also occur or intensify, such as unemployment, depression, substance abuse, breaking the law and causing injury to him or herself. In addition, delays in treatment may lead to a slower and less complete recovery. Psychosis can disrupt a very critical stage of a young person's life. Adolescents and young adults are just starting to develop their own identity, form lasting relationships and make serious plans for their careers and future. Being able to treat psychosis early greatly increases the person's odds of being able to enjoy a healthy and productive future".
	Much research is available, highlighting that investment in early intervention—investment which would be required by this amendment—can deliver substantial economic benefits. For example, my noble friend Lord Layard and distinguished colleagues at the Centre for Economic Performance at the LSE have shown that making effective psychological therapies such as CBT—cognitive behavioural therapy—available to all those who need them would pay for itself in reducing expenditure on incapacity benefits and people being able to get back to work.
	We urgently need these provisions if the Government's ambitious targets in welfare reform, child poverty, health and social care reform programmes are ever to be achieved. I hope the Government will recognise that this amendment is the best way to build on their achievements in mental health services and that it would deliver a powerful legacy in independent living and equality for some of our most excluded and unequal citizens. If we are seeking in the Bill to extend the powers for compulsory treatment, it is essential to balance that with a reciprocal right that people with mental health problems can access treatment and support at a much earlier stage, when they first need it. In that way, the Bill might begin to win their support. I beg to move.

Lord Williamson of Horton: I rise to support Amendment No. 7 and to speak to Amendment No. 55 tabled in my name and that of my noble friend Lady Meacher. These amendments are rightly grouped together as they have broadly the same aim. Indeed, the amendment moved by the noble Baroness, Lady Wilkins, is the Rolls-Royce of these amendments and mine is the Mini, but we are both driving steadily in the same direction.
	The purpose of these amendments is to put into primary legislation a right to a comprehensive assessment of the need for support and treatment for those who have or have had a mental disorder and are not in hospital. I draw attention to the fact that the assessment would be the responsibility of the local authority and, I believe for the first time in this form in statute, of the NHS body. The responsible authorities, having regard to the results of the assessment, then have to decide whether the requirements of the person call for services of support and treatment and, if so, to make the necessary arrangements. We think that this is highly reasonable. It is after all not so different from what might happen in the case of physical illness. It is a straightforward way of approaching the system, and it can be summed up as meeting the objectives of: get in early, do not wait for compulsion and do not leave a condition untreated. That is what happens now and what we want to avoid in the future.
	The Minister will not be surprised to hear me say—and not for the first time—that this proposal is in line with the Scottish mental health Act. If Scotland can produce one Prime Minister after another, I am sure it can produce good legislation as well. In addition to the evident value of assessments, in the case of mental disorder we also believe that it could remove or reduce the number of cases where people are turned away from services when they seek help. We all know that this is a tragedy which happens quite often, and the results are unforeseeable and usually bad. A survey undertaken in 2003 by Rethink—I declare my interest as a patron and long-time supporter—showed that up to one person in four was turned away by services when they or their family sought help.
	There are some differences between Amendments Nos. 7 and 55. For example, the proposal by the noble Baroness, Lady Wilkins, has a much fuller statement of treatment and support in subsection (10), while Amendment No. 55 includes a specific provision requiring the health authority and the local authority to give reasons in writing if they do not intend to carry out an assessment. This is intended to avoid an unwanted silence, which as we know sometimes happens in the treatment of mental illness. Amendment No. 55 also specifically refers to the possibility of requests by the person himself or herself, the carer, the nearest relative or an approved mental health professional. It is a little more specific in that respect. However, it is fair to say that if the Government accept the amendment proposed by the noble Baroness, Lady Wilkins, all will be well. If not, and the issue comes back on Report, it is probable that there will be a single amendment and not two, as we have before us today. But the objective, of course, will be precisely the same.

Lord Carlile of Berriew: I should like to speak in support of both these amendments. As the noble Lord, Lord Williamson, has said, they aim to achieve the same purpose. In so doing, I should like to reflect for a few moments on my experience when I was a Member of another place. I recall being involved in two non-mental health areas or schemes which were extremely successful. One concerned raising money for a CT scanner to be based in a hospital in the region in which my then constituency was situated. It was what I think the press would call a rather sexy scheme. It was possible to raise the money quickly; it was a large amount of money—a seven-figure sum was put together, and the scanner was installed. Afterwards it transpired that not enough staff were available to operate the scanner at all the times when it was needed. That was a managerial problem which left one feeling a little disappointed with one's achievement.
	The other organisation I was involved with was a truly wonderful place, a children's hospice of which I was a trustee for a time. The hospice in question, perhaps like all children's hospices, had no statutory funding at the time, but it appealed strongly to the local community. I recall going to one meeting of the trustees on a Saturday morning and being told that we had a serious problem. The serious problem was that we had raised so much money during the previous two months that other charities in the region were complaining bitterly and we had to put a brief moratorium on the raising of funds for the hospice.
	I move on to mental health provision. I was at one time involved in the starting-up of a small regional mental health charity which continues to provide services very expertly for a small number of mainly young people recovering from serious mental illness. When it started we were unable to obtain any statutory funding, and when I ceased to be a trustee at the beginning of last year it was still unable to obtain statutory funding and depended entirely on voluntary contributions, most of it raised from families with some experience of mental illness themselves. It was therefore a very different area for fundraising from either collecting the money for a CT scanner or for a children's hospice. That experience confirmed my view, when comparing it with the others I have described, that mental health provision, particularly that for children and adolescents, is and remains a Cinderella service.
	Of course I accept, and no doubt the Minister will tell us, that the Government are doing what they can in many areas to provide better mental health services, particularly for children and young people. But as we heard the other day in what perhaps I may say with respect was an extremely eloquent speech by the noble Lord, Lord Ramsbotham, there are areas, particularly custodial settings, which remain not merely Cinderella areas, but are almost completely unclothed. The possibility of those suffering from poor mental health in prisons, especially young people in custodial institutions, reaching the relative ball of a decent child and adolescent mental health ward is still remote, as I am sure the noble Lord would agree.
	How do we remedy this? How do we, as a responsible society, show those who are mentally ill and their families that we are really taking this issue seriously? A simple and actually inexpensive way of doing it is to have some kind of charter of rights. What is set out in these amendments, taken together and separately, is in effect a very simple charter of rights. As has already been said so well by the noble Baroness in moving her Amendment No. 7, it represents good value for money. A comparison can be made here with the criminal justice system. In 1996, the Audit Commission produced a memorable report on crime committed by young people. It found that £1 invested in 1996 on preventing crime for young people saved approximately £7 later on, so that is money well spent.
	Exactly the same applies to mental health provision. Beds in acute mental hospitals are extremely expensive. When I visited one of the leading psychiatric hospitals in the country, I was told that for the most acute beds—this is at 2006 prices—the annual cost was £140,000. Occasionally it was double that because of the intensive nature of the care needed. Were we to have this kind of charter of rights for those suffering from serious mental illness, it is self-evident that we would save money in the long term.
	Are there precedents for this kind of charter? For those who are charged with crime, many of whom are guilty—statistically about half of them are found guilty if they contest their cases, and something like 95 per cent are guilty because most plead guilty in any event—we have the European Convention on Human Rights. This is a very simple document, a small pamphlet, which has been incorporated into United Kingdom law by the Human Rights Act 1998. Many of the people who commit crime have full control over what they are doing at the time they commit the crime. Although many are mentally ill, many are not. The wisest, cleverest, craftiest, most devious of criminals understand exactly what they are doing. In the area we are talking about, a very small number of people have a complete insight into what is happening to them. Some do, of course, but many do not. To introduce a charter of rights in this area is the least a civilised democracy should be offering to people who may be suffering from severe mental confusion.
	Furthermore, how many people who are sectioned today really understand what their rights are at the time when they are sectioned? I suspect that the true answer is almost none. How many of their families understand what their rights are when they are sectioned? The families become very savvy after a time but, to begin with, the answer is probably virtually none. If we are going to take one opportunity in a generation to introduce amendments to mental health law in this area of serious mental illness, one of the biggest changes we can make, which would be entirely beneficial and would set a new standard for the future, would be to incorporate a short charter of rights into the legislation.

Baroness Meacher: In my view, one of the most cruel injustices in this country is the failure of our National Health Service to provide the same level of assessment and treatment to people with mental disorders as we take for granted for those with physical illnesses. This injustice, of course, affects both primary and secondary services. Either of Amendments Nos. 7 or 55, by providing a right to assessment, treatment and support for people with mental health problems in England and Wales, could ensure that progress is made to put right this wrong.
	If we go to our GP with physical symptoms, whether a skin rash, breathing problem or pain, which our GP is unable to treat effectively, we can expect to be referred to a specialist for a skilled assessment and appropriate treatment. If, however, we go to our doctor with depression or anxiety, which may cripple our lives—these are not minor matters; they can destroy our family relationships, our friendships and our capacity to work and, indeed, may ultimately lead to suicide—we may be turned away with little or no help. Only one in four of those who suffer with depression or chronic anxiety is receiving any kind of treatment.
	This failure to treat is not only a waste of people's lives, it is also costing a lot of money to employers and taxpayers, as has already been indicated. Many people with mental health problems are in work but their productivity is much lower than it needs to be. Employers are paying huge sums of money in sick pay for people who could work with a small amount of help. A million people are not working at all and are receiving incapacity benefits because of mental illness.
	One of the reasons for this costly and cruel state of affairs is, perhaps, that until recently we had little confidence that the treatments available could transform the lives of so many people. Now we have evidence-based psychological therapies that we know lift at least half of those treated out of their depression or chronic anxiety. We tend to think of psychological therapies as going on for years, but the new therapies are short-term, forward-looking treatments that enable people to challenge their negative thinking and function effectively. These therapies are supported by NICE guidelines, but those guidelines are not being implemented due to a lack of resources devoted to therapies within the NHS. Either of the two amendments would provide the impetus needed to ensure the implementation of the NICE guidelines.
	We are not seeking an overall increase in government spending—far from it. Money spent on evidence-based psychological therapies will pay for itself, as the noble Baroness, Lady Wilkins, indicated. Evidence-based psychological therapies cost a mere £750 per person. This would be fully offset if, on average, incapacity benefit claimants worked for just one month as a result of a treatment. The productivity of those in work would improve; the tax take would be enhanced; the numbers who finally break down completely and need costly in-patient care would fall; and, most importantly, millions of people would be healthier.
	I want to focus on the significance of the amendment for people with more severe mental health problems. A major concern expressed by the Royal College of Psychiatrists and others with respect to the Bill is that it will add to the number of patients under compulsion and will thus take away resources from voluntary patients. The college, rightly in my view, fears that mental health services will be directed away from services such as early intervention, assertive outreach and other developments which are designed to reduce the need for compulsion.
	The Government have begun to change the focus of the psychiatric services through the national service framework. The new early intervention teams and the idea of bringing psychological therapies and other help to young people in the early stages of a developing psychosis are the right way forward. But these teams are not yet fully developed; trusts have not devoted sufficient resources to this crucial area of work. The result in my own area, the east end of London, for example, is that generally no help is provided until the young person has had a psychotic breakdown and already has been detained in hospital. Surely this is already too late. That young person's life will never be the same again with the stigma of a psychiatric admission on their record, and the use of a costly in-patient bed could perhaps have been avoided with earlier help. By making it less likely that resources will be devoted to early intervention, the Government are undermining their own excellent policies.
	Section 117 of the Mental Health Act 1983 imposes a duty upon the primary care trust or health authority and upon the local social services authority to provide after care for people who have been detained in hospital under a six-month order. These authorities have no duty, on the other hand, to provide help to those people in the early stages of their illness. As the noble Baroness, Lady Wilkins, noted, Rethink has established that 50 per cent of people who end up under a detention order in hospital had asked for help and been turned away at an earlier stage when they could have co-operated with treatment and remained at home. This makes no economic sense and it is cruel to the individuals affected. Yet the amendment Bill repeats the pattern. It envisages compulsory treatment in the community, again for people who are under a six-month detention order. But again no duty is envisaged to offer treatment to prevent the trauma and cost of a full breakdown and hospital detention.
	Either of these two amendments would support all the principles espoused by the Government's own Social Inclusion Unit. They would uphold the principle of the least restrictive alternative, encourage preventive care and early intervention, reduce dependence on medication, support carers and combat unemployment. Either amendment deserves the Government's support.

Earl Howe: We have heard some compelling speeches in this debate. The noble Baroness, Lady Wilkins, and the noble Lord, Lord Williamson, are to be applauded for all that they said in support of their respective amendments. In a policy context it is always problematic to talk in terms of a completely demand-led service available as a right to whoever asks for it. That appears to be the effect of the noble Baroness's amendment, and I suspect the Minister is likely to balk at it. In his shoes, I probably would as well. Even if I cannot support her amendment quite as worded, however, I am definitely with the noble Baroness in spirit. I am also definitely with the noble Lord, whose amendment seems to me to have the edge over that of the noble Baroness.
	There are several things that both the noble Lord and the noble Baroness said that bear underlining. The first is that all too often the only reason that someone ends up being subject to powers of compulsion under the Mental Health Act is the lack of available outreach or early intervention services appropriate to their needs at an earlier stage. I was staggered to see the figure from Rethink that 50 per cent of people subject to compulsory treatment have previously asked for help and been turned away. That chimed in with the story that the noble Baroness, Lady Murphy, told us, and it is a terrible indictment of the way mental health services are configured.
	If anyone supposes that it can be better or more cost effective to treat someone as an in-patient under conditions of coercion than to provide treatment to the person informally when they are much less severely ill, I will be amazed. Time after time, though, that is what the service ends up doing to people. The Sainsbury Centre for Mental Health has put the total cost of mental illness to the economy at over £77 billion a year. A figure like that is a salutary reminder that an approach to mental health that adopted a much broader and more imaginative model for assessing cost effectiveness could well prove highly beneficial.
	Like the noble Baroness, I think straight away of the proposals put forward by the noble Lord, Lord Layard, who, as she said, has argued persuasively that a substantial investment in talking therapies for those with depression would repay itself in savings of incapacity benefit. I hope that the Government will give that idea the support it deserves and take it forward. That is only one example of the savings that could undoubtedly be made across the piece, if only we were able to deal earlier and better with mental illness and get people who are ill back into employment.
	Therefore, I hope that the Minister will listen carefully to his noble friend and to the noble Lord who, as I am sure he agrees, know a thing or two about disability matters. They are absolutely right to move our attention away from issues to do with detention and compulsion and on to issues to do with better and more timely service delivery, which are the things that really matter to the vast majority of service users.

Baroness Neuberger: I, too, support in principle the amendments of the noble Baroness, Lady Wilkins, and the noble Lord, Lord Williamson. Like the noble Earl, Lord Howe, I am delighted that for a few minutes we have been taken away from issues of compulsion to talk about what mental health services should be like and, indeed, what entitlements patients should have. My noble friend Lord Carlile was right to say that we should be thinking of a very basic Bill of Rights, as it were, for patients who use mental health services. We should be thinking about a right to assessment, support and treatment.
	The noble Baroness, Lady Murphy, was right to remind us of the work of Marjorie Wallace of Sane, and, indeed, of the work of other organisations, but particularly that of Marjorie Wallace, who has reminded us time and again of people who have told her organisation that they could not get anywhere. Neither individual patients nor their families or carers who have asked for help can get a response from the services. We need to look at what the services are doing.
	I speak from experience. I am sure that the noble Baronesses, Lady Meacher and Lady Murphy, have had the same experience as I have of the mental health services. I refer to chairing a mental health service trust in central London. The reason that on the whole people get such a poor response is that bed occupancy is so high that the services are struggling to provide for people who are compulsorily detained. Trials, experiments or, indeed, the introduction of a new service such as assertive outreach, which the noble Baroness, Lady Murphy, mentioned, have shown that it is possible to get bed occupancy down in the compulsory services by going for assessment, support and treatment but not necessarily for compulsion. You can make the services much more responsive. There is a lesson for us to learn from that. That is why the insistence on assessment, particularly in the amendments of the noble Lord, Lord Williamson, and the noble Baroness, Lady Meacher, is so important.
	When assertive outreach was piloted in three London trusts I was still chief executive of the King's Fund. We piloted the measure jointly with the Sainsbury Centre for Mental Health in three areas with Department of Health funding. I believe that the Minister was party to that on the first occasion that he held his present ministerial office. The pilot was so dramatically successful that assertive outreach was put into the national service framework before the assessment and evaluation of that project were fully completed. That is unusual but I think that it tells you that there is another way of doing things. During these two days of debate we have said time and again that there are ways of thinking differently and of encouraging people to use services. We should not drive them away by the threat of compulsion but allow them to engage with services and feel that they are being offered fair assessment, support and treatment. I say to those Members of the Committee who are not aware how it works that assertive outreach is a rather imaginative process. Often it involves doing a deal with patients. Patients agree to take their medication, having had a full assessment. They engage with the treatment and are compliant. In exchange they often get the support that they have asked for, which on the whole our services are very poor at providing. Sometimes patients get access to housing. Often they say that they want access to employment. We rarely manage that but often we manage to secure daytime occupation. The evidence thus far suggests that such patients have a better quality of life. That experience, in so far as we have had it—it is now in the NSF—should indicate to us by practical example that going for assessment, support and treatment is a better way in than a system that is based on compulsion. I hope that the Minister will take that very seriously because it seems to me that we could reduce the need for compulsion if we were serious about assessment, support and treatment.
	If we went down this path, we would follow the recommendations of the joint scrutiny committee of the 2004 Bill. We would accord with the Government's own national service framework—a framework which is at the moment somewhat in danger because the services themselves are having money stripped out of them. Mental health services are losing money to the acute sector due to deficits. That should give us real cause for concern when what we want to see is a system that encourages assessment and voluntary treatment. Other Members of the Committee have said that Rethink's evidence that 50 per cent of people who are treated compulsorily asked for help but did not get it is a disgrace. It is indeed a disgrace but we also need to recognise that when people ask for and receive treatment voluntarily, the evidence shows that it tends to be much more successful. The Healthcare Commission has told us that some 51 per cent of mental health service users have no access to crisis care out of hours. Yet, if you want to have a system of assessment, support and treatment that people will engage with voluntarily, you have to have access to crisis care. That fits with the model that the national service framework has given us.
	The noble Baroness, Lady Meacher, talked at length about the cost of mental illness and particularly of depression. About 40 per cent of people in receipt of incapacity benefit have a mental health problem. The economic costs are huge. I shall not go through all that but we have developed very good ways of supporting people with an alternative to care in an acute ward under compulsion. I refer to the Drayton Park alternative to in-patient care for women and the American idea, which we hope to establish in Britain, of the Times Square hotel of supported housing. Those measures have almost always been funded under charitable or short-term project funding. My noble friend Lord Carlile is right to say that mental health services are still the Cinderella services of our health service. Often but not always you can easily raise money for hospices. You can raise money for cancer and multiple sclerosis. However, it is incredibly difficult to raise money for mental health services. This is an area where we should give patients rights, which need to be backed up with money. Money should not be stripped out of the system. The Government will loathe our saying that this will cost. It will cost in the early stages although in the longer term it may save money. Many of us would argue that it would save money in the longer term. We should have a charter of rights that gives people the right to assessment, support and treatment. That will need funding but not from the compulsory side of the sector. I should like to see this Government have a Bill of Rights that takes on board the principles behind the two amendments that we are debating and which is not just lip service to patients' rights but shows that we really mean it.

Lord Hunt of Kings Heath: I fully understand that. What I am trying to say is that such an amendment to the Bill would, by its very nature, have the effect of forcing the health service and local government to give absolute priority to those services. There would be no similar duty in other areas of the health service. That is my point.
	I shall mention the legislation that we believe covers the responsibilities. Under the National Health Service and Community Care Act 1990, it is already the case that a person who appears to a local authority to be in need of care services is to receive an assessment of that need. The Secretary of State already has a duty, in the National Health Service Act 1977, to promote a comprehensive health service designed to secure improvement in the physical and mental health of people and in the prevention and diagnosis of illness. There are similar provisions in relation to Wales. Those are significant and important duties. Moreover, a process of inspection and regulation has also been established. We have the Commission for Social Care Inspection and the Healthcare Commission.
	Wherever the needs of a person being assessed for community care services are such that an assessment is also required from a health professional, the local authority is required to request a contribution to their assessment from the appropriate NHS body and to take into account the health services that are to be provided as a result. There is a statutory responsibility for NHS and local authority bodies to co-operate. Under the existing arrangements, community care assessments already provide the elements that make up the definition of "treatment and support" in subsection (10) of the amendment in the name of the noble Baroness, Lady Wilkins. That is current good practice. Therefore, the legislation itself meets many of the objectives which noble Lords wish to see in generic provisions that apply to health and community care generally.
	Surely one should also acknowledge the huge improvement that has taken place in mental health services over the past few years. Of course it is not perfect and much more needs to be done, but surely we should acknowledge the enhancements such as the whole purpose of the National Service Framework for Mental Health and the guidance given to the health service. There has been extra investment. The noble Baroness, Lady Neuberger, has referred to early intervention teams, crisis resolution teams and assertive outreach teams.
	We face many more challenges, and we want to do everything we can to improve the performance of the mental health service. We want to ensure that patients know their rights and that the gaps in provision which noble Lords have mentioned will be met. However, given the existing statutory framework and the problem of singling out mental health provision as Amendment No. 55 suggests—for we see a real problem there—surely the emphasis has be on the work of the care commissions and on monitoring performance management. That government role goes hand-in-hand with the legislative changes we are proposing. We will do everything we can to ensure that the current improvements continue.

Baroness Sharples: My Lords, I am most grateful to the noble Baroness, Lady Stern, for introducing tonight's debate. I hope I will be forgiven if I stray a little from the subject. A few months ago I was the chaperone for a friend who had, for some years, been dealing with ASBOs in the community. Since a change in management she is sent out alone, working until after midnight on most occasions, and travelling many miles as her centre covers a very wide area. This is quite disgraceful. Often she has no information on the background of the person she has to visit. This has put her in danger. I do not exaggerate; more than once she has been confronted by people with guns in their houses.
	Putting restraints on her clients and installing equipment takes time, and results in lots of paperwork for her. The equipment is often unreliable, which proves even more frustrating. Older offenders are not as skilled as the younger ones in damaging or removing their restraints. One young lady has removed hers three times. On each occasion it has taken at least a week—sometimes a month—for the centre to deal with it and for that restraint to be replaced. What use is this? Innocents are sometimes blamed for removing their straps when it is the equipment that is faulty. Are corners being cut to save money? I rather suspect so. Why is it not compulsory, throughout the country—I know that it happens in certain areas—to send visitors out only in pairs?

Baroness Linklater of Butterstone: My Lords, I am truly grateful to the noble Baroness, Lady Stern, for raising this subject which, as she rightly says, has caused many Members of this House considerable concern for some time. During the Anti-social Behaviour Bill in 2003, we discussed at length the management of low-level disruptive behaviour, and the sort of distress and aggravation caused by those families known as neighbours from hell and generalised trouble on the streets—so often alcohol-fuelled. Everyone has the right and need to be spared such behaviour and the distress it can cause.
	The Anti-Social Behaviour Unit was created to promote and develop a crackdown on such behaviour—with enormous enthusiasm and a zero-tolerant enforcement approach. However, the rigorous evidential tests more usually required by the Treasury for funding other Home Office policy initiatives were not applied. Indeed, Louise Casey, now head of the Prime Minister's Respect Task Force, was reported as saying to a senior police audience in 2005:
	"If No. 10 says bloody 'evidence based policy' to me one more time, I'll deck them".
	One can only infer from that extraordinary remark that No. 10 was indicating that at least some research would be desirable, even if the head of the task force had no time for it.
	That research and some evidence is now available through the welcome work of the Youth Justice Board, and it is an extremely important start to what should be informing any developing policy in this area. The vagueness of a definition for anti-social behaviour has, inter alia, caused the interpretation of, and the prosecution of, ASBOs to vary enormously around the country. Indeed, in 2005, the Home Office concluded:
	"What counts as antisocial behaviour is not firmly agreed and there is a fine dividing line between antisocial acts and behaviour that might more appropriately attract a 'criminal' label".
	Today, instead of respect being imposed through ASBOs and the zero-tolerant approach, they are now seen, as we have heard, as a badge of honour among some of the most disaffected—the precise opposite of what was intended—and allow the naming and shaming of children who appear in court. Worst of all, the breach of ASBOs is a criminal offence and has become a growing issue. This means that non-criminal anti-social behaviour can lead, through a breach, to a criminal offence and possible imprisonment. This is important as, increasingly, children are seen as the chief cause of anti-social behaviour. Indeed, 46 per cent of ASBOs have been issued against children aged 10 to 17, although that group comprises just 13 per cent of the population.
	The Youth Justice Board research shows that children with ASBOs tend to come from highly disadvantaged groups, including those who suffer family breakdown and significant mental health problems. That illustrates the complexity of the problem that we are trying to deal with. However, there is a raft of strategies, including a tiered approach to the young people in trouble and their families, before an ASBO is imposed, as well as ISOs—individual support orders—which can be attached to make the ASBO more constructive. However, very little use is made of either approach. Similarly, YOTs were often neither consulted nor had input into the length of an ASBO. It is clear from both these findings that, as yet, the steps necessary to develop the possible benefits of an ASBO and minimise all the potentially very damaging effects are simply not being taken.
	Although very recent figures are not yet available, in the early days 46 per cent of 10 to 17 year-olds who breached ASBOs actually received a custodial sentence, and the presumption is that that figure will be substantially higher today. Here we have a policy which, whether by accident or design, is both criminalising children and promoting their imprisonment.
	By contrast, in the whole of Scotland, where the children's panel system keeps all children out of the criminal system until after they are 16, only four ASBOs were made against children aged 12 to 16 in 2005. Instead, through the children's hearing process and its welfare-based approach other strategies are used—strategies that do not involve being soft on inappropriate behaviour, but instead require the child and his or her family to face up to the consequences of their actions. If only such lessons could be learnt south of the Border.
	The conclusion of the Youth Justice Board's research is of concern. It states, in relation to ASBOs, that:
	"Those who see their role principally in terms of community protection are generally less critical of enforcement-type measures than those whose predominant concern is working directly with young people to change their behaviour. Effective practice may in future depend on achieving a balance between those perspectives".
	That points to a difference in the perceptions and objectives of those two groups, when in fact they are and should be identical. Young people are part of the community that needs protection and managing their behaviour in such a way that it is not repeated and the causes of it addressed properly are precisely in the interests of all concerned. Instead, the Home Office has confirmed plans to introduce "indicators" in every area to,
	"increase the take up of anti-social behaviour powers".
	In other words, the more ASBOs, the better, as the proof that the problem is really being tackled.
	Can the Minister reassure us that the suggestions in the report for minimising this damage will be adopted? If not, I fear that the quality of life in our communities, far from being enhanced, will be greatly reduced and those young people will be further than ever from learning the respect that we all want to see.

The Earl of Listowel: My Lords, I, too, thank my noble friend Lady Stern for this opportunity to consider how the right sanctions and support can be used to address the behaviour of our troubled and troubling children. I very much agree with the hope that the noble Baroness, Lady Linklater, has just expressed—that this debate will be an impetus for the Government to take forward the important improvements to applying anti-social behaviour orders—in particular, the concern identified in the Youth Justice Board report that in seven out of the 10 areas examined, youth offending teams had little or no involvement in the decisions that led to an ASBO being imposed. I hope the Minister agrees that that must be addressed.
	I recognise that for some young people a sanction of this kind is needed. Professor Morgan, chair of the Youth Justice Board, has stated:
	"Let me be clear—the YJB is not against Anti-Social Behaviour Orders. They can—and do—work incredibly well ... but ... they need to be used correctly. That means exhausting every preventative measure in the community first".
	I join with the noble Lord, Lord Judd, in expressing concerns about the most deprived families in our communities and I salute the Government for the many measures that they have taken to improve the welfare of our most vulnerable families, thereby preventing this sort of behaviour by that means. I am thinking in particular of the respect action plan, to which the noble Baroness, Lady Linklater, referred, and the emphasis that that puts on supporting parenting.
	When I spoke to the noble Lord, Lord Warner, the former head of the Youth Justice Board, he said that parenting support proved to be the most effective and most economic way of reducing re-offending—and it was welcomed by the parents. The Every Child Matters agenda—the Children Act 2004—obliges all agencies to work together to improve outcomes for children and families. There are targeted youth work teams. The recent Options for Excellence paper, published in October, looks at the social care workforce in particular, and how the Government's ambition is to do for social workers what they have successfully done for teachers by raising their status and morale.
	All those developments are welcome, but in the real world, we know that legislation and plans do not necessarily bite. There needs to be perseverance. A lot of investment needs to be made to ensure that the social workforce is transformed. We are at a difficult time in terms of funding. There is the issue of the turnover in social workers. I spoke to a young man a month ago who had five social workers in two years. Vacancy rates for social workers can be as high as 20 per cent in urban centres. The British Association of Social Workers is greatly concerned about the retention of social workers in many areas; they are the people who could do the most to support families and, therefore, prevent anti-social behaviour. The report of the Youth Justice Board notes that little consideration is given in sentencing to providing parenting orders and other interventions. It astonishes me that so little thought is given to that.
	The first question is whether the young person has committed many acts of anti-social behaviour. Secondly, are there any other means of protecting the public from this child's behaviour before introducing the anti-social behaviour order? That thinking has not taken place. There is insufficient involvement of the YOTs in these processes. There is currently a surge in the number of children being taken into custody. We already have too high a number of children in custody. We must be careful not to criminalise more children through not taking the sensitive and necessary precautions to which my noble friend referred.
	I recognise that in some cases those sanctions are effective. However, they need to be applied with great care. The figures demonstrate that that is not being done at present. The figure of 60 per cent continuing instances of anti-social behaviour among children once the orders have been introduced is not acceptable. I hope that the Minister can assure us that real action is being taken in response to the report.

Baroness Anelay of St Johns: My Lords, I, too, add my thanks to the noble Baroness, Lady Stern, for giving us the chance for this short debate.
	The research carried out by the Youth Justice Board found that almost half of ASBOs are routinely breached by under 18s; and that they are widely seen, as other noble Lords have said, as "badges of honour" by offending teenagers, their parents, and even some criminal justice professionals. It is a disturbing picture indeed.
	Furthermore, the report says that many of those involved in tackling youth offending, including magistrates, have serious reservations about their effectiveness and question how much they change the behaviour of young offenders, or address the causes of that bad behaviour. More than 7,300 individual orders have been issued since they were introduced by the 1998 Act as a flagship part of the Prime Minister's drive against anti-social behaviour. But this new study shows that 49 per cent of under-18s have been returned to court for failing to comply with their order, with the majority breaching that order on more than one occasion.
	When we had an oral Question on the National Audit Office report on ASBOs last month, the Minster the noble Baroness, Lady Scotland, who is not here today, displayed an air of complacency about the breaching of ASBOs that I found very worrying indeed. She said that one should not see breach as a failure and that she was,
	"very pleased by the success of the work that [the Government were undertaking]"—[Official Report, 12/12/06; col. 1452.]
	That success has led more widely to 55 per cent of all ASBOs being breached and 20 per cent of those being given ASBOs simply not responding to them in the long term.
	The report concludes that youth offending team practitioners, and some sentencers, regard the high level of non-compliance as a key indicator that ASBOs are ineffective and are concerned that by extending the young person's criminal record, breach increased the risk of custody in the longer term. What is the Minister's response to that?
	All the young people interviewed were aware of the possibility of breach, but most either did not regard the threat of custody as "real", or did not consider it to be a deterrent. Surely that raises the concern that ASBOs do not have an impact on that young person's intentions to offend again and again. Indeed, the report also shows that even youth offending team practitioners tended to think that ASBOs were overused and had little positive impact on behaviour. They typically viewed ASBOs as potentially counterproductive, believing that they undermine positive interventions that were available, that could be in place and are not being used, and which might be better than using court action.
	The research also found that there was a variation in the use of the different types of order. That could not be explained by examining the type of behaviour leading to the application, but appeared to be due to the development of local preferences for a particular route. Surely the worry there is that as a result ASBOs can overall be poorly targeted and unrealistic in what they impose on the young person. All noble Lords have referred to that point.
	So, what is to be done? Of course an immediate response from the Minister tonight might be to tell us that the Government are minded to adopt all the recommendations in the report. We shall wait and hear. I believe that we need to take a longer-term view. Here I get rather worried that the noble Lord, Lord Judd, has often pre-empted many of my remarks. There seems to be some kind of a very holy alliance, I am sure, developing. Are ASBOs fit for purpose? Are they now being used inappropriately as a first resort rather than a last resort? The Home Office has added to the confusion here by its change of emphasis in the guidance it has issued on these matters. Are ASBOs being used to address minor misdemeanours in the proper way, or, instead, as some have suspected, and indeed in this report, are serious matters now being dealt with rather than other matters being addressed?
	One of the key findings on page 37 is that a number of interviewees, most notably sentencers and—I hate the term "YOT"—youth offending team practitioners were concerned that anti-social behaviour legislation was now being used to address criminal behaviour. So what was intended to be directed at minor misdemeanours is now being directed at more serious criminal behaviour that should have been dealt with in other ways.
	Would it not be useful for the Home Office to produce a forensic, reliable and published analysis of what works and what does not work; and why? It is vital that we should hold individuals responsible for their actions and punish them when they break the law. The noble Lord, Lord Judd, was absolutely right to remind us of the living hell that some of these young people can impose on some neighbourhoods. That has to be at the forefront of our memories in dealing with all these matters. But, as my right honourable friend David Cameron said at the annual Youth Justice Board convention this November, we can punish young offenders all we like, but if we do not tackle the causes of crime we will never have a safer society. So we should not demonise young people. We should ask ourselves what we can do to give young people hope, to improve training, to strengthen families, to tackle addiction as early as possible and to encourage good behaviour—knowledge of what is right and wrong; a conscience—before one acts.
	Fighting youth crime is not just a state responsibility; it is a social responsibility for us all; and we forget that at our peril.

House again in Committee.
	On Question, Whether Clause 4 stand part of the Bill?

Lord Soley: Perhaps I ought to start with the phrase "as I was saying", but I shall start instead with a short apology for intervening on the wrong amendment. It is a classic example of using the first Marshalled List instead of the second, which is absolute proof, if any were needed, that sparing the Earth's resources by using one set of papers does not spare one's blushes when one gets it wrong.
	I shall not repeat what I said earlier. I had made a point about the civil liberties of patients and the individuals who are affected by them, as well as about the rights of the community. It is a balance of rights. I had made a point about the difficulty of definition and I had just started, before my noble friend drew my attention to the different amendment involved, to speak about the 1959 Act and the way in which the hospitals were changing from that time onwards. I was embarked on a grand scheme of describing a situation—I remember it all too well—where the hospitals were providing a care and safety role for large numbers of people who did not need to be there. At the same time, they were providing a place of safety for people who later on fell under the definition of not being treatable. That problem has to be addressed. Over the years, all parties have ducked it because it is so difficult. It is about personality disorder, but we have to recognise that it goes wider than that.
	In the 1960s and 1970s, the problems resulting from the failure of psychiatrists in particular—but not just psychiatrists—to offer treatment for personality disorders had a dramatic effect. By that time, there were many people out on the streets who would not have been there previously. Additional problems were brought on by drug abuse. In the early 1970s, I was working as a probation officer in the Kings Cross area. The problem which we faced at that stage was that one would come across people who, whether or not they had a personality disorder—there was an area of difficulty around that—clearly needed help and treatment and who were very often asking for it. They were often doing so in secure circumstances, but you could not offer it. That is a major problem. The Front Bench opposite referred to the Stone case. Michael Stone had had previous psychiatric treatment, but when he went back to another hospital and asked to be readmitted because he would do something very damaging or dangerous otherwise, he was refused. This was a common experience for probation officers and other people who were working in this area in the 1970s. It has remained so since then. Although I have left the profession, plenty of contacts tell me of instances—although there are fewer of them—of people who are refused admission or treatment because their condition is regarded as not treatable. This is a major problem.
	The situation now is slightly different, but almost any Member of Parliament from an inner-city area will be able to tell you what sort of people are affected. Members of the House of Lords need to be very aware of this. Your heart sinks as a Member of Parliament when people contact you and describe the behaviour of someone who is clearly unwell and whose behaviour is deeply disturbed. The people immediately around them are scared for good reason. The person will not have done anything against the law, although they will have done some things which might be profoundly dangerous. Shortly before I left the House of Commons, I came across the example a man who would throw very heavy objects over the garden wall without looking over the other side first. He was very disturbed; he had all the signs of disturbance. One could not have arrested him. The police came round to warn him, but nothing was done and the hospital trust said that he was not treatable. The police were saying, "He has not done anything wrong. We've warned him, but we can't do anything about it". Members of the community would say to me, "What's the guy got to do? Has he got to kill one of us first before you take any action?" It is a very real issue.
	Another case which came to me was that of a woman who had plenty of money and was not unintelligent, but her house was getting into ever-worse repair. I would have classed her without any hesitation as having a personality disorder, although she was very well presented. Her house went downhill. She set fire to parts of it and began to use the garden as a toilet. You can do things about a garden being used as a toilet if you can show that it is a danger to others in terms of environmental health, but you cannot always do that, particularly if they bury it. Eventually, after five years of the neighbours putting up with this, I got a compulsory purchase order on the house. That is the difficulty of dealing with cases such as that. It is why it is bad to say that that person did not need treatment. That certainly does not help them.
	When we talk about patients' rights, we need to understand that for some people whose behaviour is disturbed and shows signs sometimes, but not all the time, of mental illness, we might need to exercise some control and restraint. If you do not, you are behaving like the bad parent. If you say, "Well, it's all right for her to go to the toilet in the garden and it is not harming anyone else", you are being a bad parent. In cases such as this—as I have said, many inner-city MPs will have them—we need to be able to intervene.
	The Front Bench of the Conservative Party asked whether being able to do so will make any difference. It will make a difference, although, as I indicated in my earlier, inappropriate intervention, it might not make enough difference for us not to have to return to this at a future date. It will make a difference because it toughens up the system. It will make it more difficult for a health authority to say that it will not intervene. Faced as an MP with a number of such cases, I would have felt able to go to a health authority and say, "You cannot say that appropriate treatment is not available here".
	Moreover, as some of the psychiatrists said in our meeting with them a few days ago, it will help to change the culture and practice in psychiatry, making it less likely that arguments will be put forward that treatment cannot be given and the person should be left alone. It is to a large extent a culture-and-practice matter. During my days in the probation service in the 1970s, it was very common for a psychiatrist to say, "I am not going to deal with them; they're dangerous", yet probation officers, social workers and a whole variety of other people had to deal with them. You cannot just walk away from this. Psychiatrists have got better and you hear that said far less often, but you still hear it. When a psychiatrist would say that they were not going to admit the person in question, you then had to look around for a hostel. What would the hostel say? "They're too dangerous." Alternatively, they would throw them out on to the street again when they became aggressive.
	My final point is, again, well understood by elected Members of Parliament, who constantly face a battering from constituents about it. I deplore it when the press come up with gross headlines that actually create fear and whip up hysteria about "mad" or "bad" people. I have had plenty of occasions to have a go at the press about that and I have a record for doing so.
	The real warning for anybody who deals with this politically is that, however inappropriate the headline, underneath it there is very real anger and fear in the community. Legislators have to take into account not just the rights of the individual concerned, and not just the rights of the community, but fear levels in certain areas of the community on certain issues, of which this is a prime example. You ignore that at your peril. It is like sentencing policy. The reason it is so difficult to get sentencing policy right is that people always want longer and longer, and tougher and tougher, sentences. It is easy to say that that does not necessarily work, but we know what people want on it—they tell us very clearly.
	My basic message to the Government is: by all means keep the Bill as it is. I certainly approve of the measure. I think it will make things better, helping to change culture and practice, and enabling people to say, "Look, this wording is tougher than the previous wording, so you cannot duck out of it". It will enable people to get a bit more confidence in the system, which to some extent has been lost. It does not get in the way of patients' rights, but it recognises that these rights, as I indicated before, are very much part of a package of rights, which relate to individuals in the community as well.
	At the end of the day, if we still get problems of the type that I have described, then the Government may well have to return to this issue with rather tougher wording. The key issue—which goes back to what I said in an intervention on Monday—is to get away from this terrible fear that we are somehow going down the road of the Soviet Union, or whatever. It is not the wording of a particular clause, about a particular mental health problem, that safeguards liberty; it is the rule of law and all the extra bits you put in, such as the mental health tribunals. That is what protects you. The idea that this could only happen in an authoritarian regime is nonsense.
	That is why I again ask people to think about what was happening in the 1950s when we did lock people up. Actually, they were not always locked up; they could often go out and get jobs and work from the hospital—it was like a big hostel in some ways. Some were locked up, however, and it was inappropriate. Some were kept in there for years and years and they should not have been. At the same time, we provided a structure for them, as that was the best form of treatment—a lot of this was before modern drug therapy was around.
	Therefore, I say to the Minister, go ahead with this and see how it works, but do not be afraid to return to it. We will never get it exactly right. There will always be a problem of definition around essentially behavioural issues—psychopathy, personality disorder or whatever you want to call it—which we know are also about grossly disturbed behaviour. In Kings Cross, I worked mainly with people who were labelled personality disordered and with alcoholics—the two were often combined, which made it even more difficult. However, it is abundantly true that you know when you are dealing with one of them for a long time. It is the old story: you cannot define an elephant, but you know if there is one in the kitchen. The issue here is not that we lock them all up, but that we have some way of containing them for periods of time, such that it is constantly open to review by non-medical and non-social work specialists—hence the importance of the health tribunals and the law, and so on.
	Let us not kid ourselves, however, that this is not a serious problem. The numbers are admittedly small, but the impact is great. If I took you to the neighbours of the lady who I described right now, they would express far stronger feelings than I am expressing about the inability of the health services and the law to help.

Lord Carlile of Berriew: The noble Lord, Lord Soley, knows that I hold him in very high regard. I regard it as a privilege to follow him in debate. I hope he will take it as no more than an affectionate reproach when I say that I find it much easier to follow his speech than his argument on this occasion.
	I suggest that he has completely failed to explain to the Committee why a therapeutic benefit test would be less effective than the appropriate treatment test contained in the Bill. The report of the scrutiny committee, of which I was chairman, contains a list of the evidence it received from page 279 to page 293—a huge list it is. A very large proportion of that list consisted of evidence on precisely that issue and the whole question of dangerousness.
	It is very important that nobody should get the idea that the noble Lord, Lord Soley, wants to protect the wider community, who have the right to be protected from dangerous people, while the rest of us are simply trying to protect the rights of a small number of seriously mentally ill people. That would be to traduce our argument. I completely share with the noble Lord and the Minister the aim that as many people as possible who appropriately fall within the provisions for compulsory treatment, within the ambit of the Mental Health Act 1983 as it will be amended, should be brought within that scope.
	I agree with the noble Lord, Lord Soley, that the public deserve, and are entitled to, protection so far as possible from dangerous people. Just as I have said repeatedly in the terrorism context that national security is a civil liberty of every citizen, equally protection from dangerous people is something that every citizen is entitled to expect. The question here is much narrower. Agreeing as we do on the principles, we must ask whether these clauses provide greater protection than a therapeutic benefit test. I think almost everybody—I suspect, even Ministers—agrees that the language of the appropriate treatment test is less certain than the therapeutic benefit test. I am strongly of the view that a court would find it easier to test the term "therapeutic benefit" than "appropriate treatment". Appropriate treatment is defined in every case by the psychiatrist or the lead professional providing the treatment, and that in itself introduces substantial difficulty for the courts.
	I agree with the Government, as did the committee, that the old treatability test in the Mental Health Act 1983 presented problems. It is absolutely right that it be replaced, and I would applaud the Government for replacing it. I am sure that the Committee shares that view. The question is whether the Government propose to replace it with the right kind of measure. We must ensure that the balance between the civil liberties of the patient and those of the majority of the community falls within a certain area that can properly be interpreted by the courts.
	It is hoped that the Bill will achieve the retention of more people who are already known to the services within those mental health services, so that those who have come within their ambit are less likely to commit serious crime—as was pointed out to me the other day, we are not just talking about homicide—than under the old law. The committee's view was that a therapeutic benefit test would achieve that. I have seen absolutely no evidence that the vaguer test proposed by the Government would achieve more than a therapeutic benefit test.
	The other question is: how far will this new law bring people who are not already within the ambit of the services within their scope? It is a truism that a very small proportion of seriously mentally ill people commit serious crimes. It is accepted that between one in 10,000 and one in 20,000 people who suffer schizophrenia commits a homicide. How many of those 10,000 to 20,000 people will be brought within the scope of the very acute mental health services as a result of the Bill? Will it be more, less or the same number? I suggest to the Government—and in this I have the support of the Mental Health Alliance, including the Royal College of Psychiatrists, to which I will return in a moment—that the appropriate treatment test is likely to diminish the number of people coming within the scope of the mental health services. Mentally ill people often go to services voluntarily but only when they have a sense that they will be safer in the hands of the mental health services than out on their own. If they are aware that a very vague test is being applied so that they run a far greater risk of long-term, compulsory detained treatment, they are significantly less likely to go to the mental health services. That must surely be a matter of common sense. The prospect, therefore, under the vaguer test of more potential homicides being brought within the system is very small.
	Furthermore, if one looks at the inquiries to which the noble Lord, Lord Soley, referred both in his trailer and in the feature film, one finds a clear pattern in every single case that has been inquired into, of which I am aware, right up to the present. The finger has not been pointed at a deficit in the definition of mental disorder. The finger has not even been pointed at the treatability test. In every single case it has been pointed at a failure in resources—at a failure in services and occasionally at failures of judgment. Nothing in this Bill repairs those problems.
	I mentioned that I would say more about the Royal College of Psychiatrists. It is simply to answer a question that was raised much earlier today. There has been a good deal of discussion about the role of the Royal College of Psychiatrists in the debate we are having on this Bill. As a lay person, I am satisfied that it is sensible to obtain the views of the professional body that represents the clinicians involved in the territory. I could add a whole list of other bodies, some of which have been mentioned earlier—the noble Baroness, Lady Meacher, mentioned one or two—which agree with the Royal College of Psychiatrists.
	The question raised was: how many psychiatrists are on the side of the Government on these issues? I was invited to meet a few. Indeed, the noble Baroness, Lady Royall, very kindly arranged a meeting at which Members of this House were to meet psychiatrists in favour of the Government's proposals. I did not take the trouble to count them at the time because I was too interested in the issues, but I do not think I got beyond eight or nine. Ten, I am told from across the Chamber. So that is ten against the Royal College of Psychiatrists as far as I am aware. Of those ten, I was left with the view that some of the senior members of that group had very fixed preconceptions and were not at all open to argument.
	What is the point of introducing an appropriate treatment test which is going to drive people away from the service and which flies in the face of the evidence called before an all-party scrutiny committee which reported consistently with the previous inquiry of the expert committee chaired by Professor Richardson? I do not believe that one can do better than citing what was said to the committee by Professor Eastman. Professor Nigel Eastman is Professor of Law and Ethics in Psychiatry at the University of London and he is Head of Forensic and Personal Disorder Psychiatry at St George's Medical School. I would invite the Minister to attend very carefully to what he said because, in my view, it encapsulates the argument in a short paragraph. It is at paragraph 139 on page 50 of the first volume of the Joint Committee's report. Professor Eastman, who is of the highest standing said:
	"Therapeutic benefit to the individual is of crucial importance in terms of protecting the boundary of what is the business of mental health professionals. I am not at all against protecting the public, of course not, but it must be in conjunction with some benefit to the individual that goes beyond simply stopping them offending. If you adopt a definition of treatability which is simply the reduction of risk or the avoidance of offending, that means that locking somebody up is treating them".
	I agree with Professor Eastman: locking somebody up is not treating them.
	I know that the noble Lord, Lord Soley, has rigorous intellectual honesty. He and I were at another place together and I have heard him speak on many subjects and that comment is based upon my experience. I completely share with the noble Lord the view that there may be a case for locking up people who are untreatable and who have been found to be very dangerous. But let us not pretend that the right way to do it is under a mental health Bill. I do not join those who accuse the Government of trying to create a kind of Soviet-style psychiatric regime; that is an unfair criticism. But I do criticise the Government for failing to grasp the nettle on the whole question of therapeutic benefit and dangerousness. A responsible government should be intellectually honest enough to grasp that nettle. If it is the case that this Government believe that certain people should be locked up as a result of certain criteria, a sort of control order regime for dangerous people—and there is a precedent to start with—let them bring forward a Bill to this House and the other place and it will be considered on its merits. Parliament will then be able to adjudge whether it is necessary, and if so in what terms, to place restrictions on dangerous people who cannot be treated. But in terms of a mental health Bill, if this really is a Bill on mental health and not, as has been suggested by another Member of your Lordships' House, merely a Home Office Bill in disguise—a way of securing, as Professor Eastman put it, "locking somebody up"—the Government really need to accept that their appropriate treatment test simply does not add up to anything involving improvement to health.
	The Scottish Mental Health (Care and Treatment) (Scotland) Act includes the therapeutic benefit criterion in that compulsory powers can be used only where medical treatment is available which would be likely to,
	"prevent the medical disorder worsening, or ... alleviate any of the symptoms, or effects, of the disorder".
	That is not a high demand for a therapeutic benefit, but at least it retains a concept. The purpose of mental health legislation, as the committee said, must not be to detain people for whom no beneficial treatment can be found. In my view, this Bill has been infected by these clauses. It has the infection of a custody Bill rather than a health Bill. I would ask the Minister to take on board criticisms of this part of the Bill which he knows come from within and outwith Parliament, and to say to the House that the Government will consider these matters further and return at a later stage hopefully with acceptable amendments.

Baroness Murphy: Follow that. For me, this is simply the most important amendment to the Bill. However, the noble Earl, Lord Howe, and the noble Lord, Lord Carlile, have been so eloquent and clear in outlining the issue that I shall be brief. I feared that the noble Lord, Lord Carlile, would use my best quote from Professor Nigel Eastman, but he did not. I cannot remember whether he said this in the Joint Scrutiny Committee or on another occasion, but at one point he observed that if you have so-called hospitals where people can be locked up without the need to have therapeutic benefit,
	"you are creating snake pits".
	I acknowledge the difficulties of the word "treatability" and how it has been misinterpreted or used as an excuse over the years. I should say to the noble Lord, Lord Soley, that I recognise the scenario he described, and certainly as a young trainee psychiatrist I had a great deal of sympathy with the desperate plight of people who seek—or perhaps ought to seek—help but do not get it. We know that excuses are made because of resources and inappropriate attitudes, but I can also remember the mental hospitals and the containment they provided. I would not wish to go back to that era because many of them were simply snake pits and would not do any more. So I acknowledge the difficulties of the word.
	However, the concept of therapeutic benefit must not be jettisoned. We have to go right back and ask: what is the purpose of a mental health service? The same as any health service, it is to relieve suffering. People who go into mental health care do so because they have a passionate commitment to alleviating the suffering of those who suffer from mental disorder. If we change what healthcare professionals aspire to do and to be, we change the very basis on which medicine, nursing, psychological therapies and so on are based. Even with someone who is dying and in receipt of palliative care services—the Alzheimer patient at the very end—we still aspire to give therapeutic benefit. We provide care. We do not give up. That is the whole point. It is utterly fundamental that we should retain that idea somehow within what we are trying to do for people, including those whom the noble Lord, Lord Solely, has so eloquently described. However difficult they may be, they need to be accepted and welcomed within our services.
	Case law has established that a person can be detained if hospital treatment would prevent deterioration in his condition, make him more co-operative and insightful or impact on his symptoms, even if it would not change the underlying illness. In fact, most medical treatments do not cure the underlying illness; they relieve symptoms or reverse the effects of symptoms. But the courts have been clear until now that mental health law should not permit indefinite preventive detention of a person for whom no benefit could be shown; simple containment is going too far. So, given the breadth of the existing test, it is hard to see what the Government seek to achieve by the new test, except to allow ongoing detention beyond that currently permitted by the law—and that is where I stick.
	When I first read the appropriate treatment test I thought, "Oh, that will do. That might be it". But the more I see how broad is the reach of the legislation and the concept of appropriate treatment—it is extremely difficult to define—the way in which it is described in the draft code of practice becomes almost meaningless. There is no requirement that the patient should receive any benefit beyond that of confinement in a therapeutic environment. In other words, there does not have to be an aspiration to improve and rehabilitate, and that is simply not acceptable in mental health services. It is inherently unethical to permit people to be detained in hospital or to have their lives controlled when they do not obtain any benefit from it. All members of the Mental Health Alliance consider this a fundamental principle of mental health law which must not be jettisoned. Others have spoken so eloquently that I will not go on about that.
	We have mentioned repeatedly the fears of black and ethnic minority communities and how they are disproportionately affected by this provision. We need to provide people with services that are not only utterly welcoming but also genuinely trying to assist their mental state.
	If clinicians have misunderstood the law—I do not think they have; it was used rather as an excuse—the situation should be remedied through training and the provision of an understanding about what services are supposed to be about and the kinds of people we are willing to treat. But changing the law will not provide extra beds or facilities and it will not make people easier to treat in ordinary psychiatric facilities. I do not think that clinicians will be bullied into incarcerating the inconvenient, but Clause 4 must go.

Lord Warner: I was not exactly saying that. I was trying to explain—no doubt inadequately, so I will have another go before I continue my arguments—that the inherent nature of "treatability" tests and the therapeutic benefit test is that they presume a knowledge of outcome that is actually a higher test. Noble Lords may shake their heads, but as a person with a reasonably logical frame of mind who, on the whole, understands the Queen's English, I think that they are asking to raise a higher test than we ask some physicians to apply in how they respond to physical conditions. Your Lordships may disagree with it, but I happen to have that view and believe that I will be sustained in it when people reflect a little more on it.
	I will continue with the arguments that I want to develop. As I have explained, I believe that the Government's approach of "appropriate treatment" is right in these difficult circumstances and I say to the noble Earl, Lord Howe, that "appropriate" is neither a weasel word nor a cop-out professionally. It means what it says, in that the clinician should be sure that the treatment is right or suitable or fitting—those are the kind of dictionary words that "appropriate" actually means and any of them can be chosen as preferred. It assumes that the clinician will make those judgments based on the particular circumstances or individual or purpose on which he is required to act.
	Inevitably, professional judgment has to be used in particular circumstances, but if it is wrongly used—if the person makes a gross error of judgment about whether treatment was appropriate—then it can still be challenged. But I would suggest that the Government's approach of an appropriate test is more realistic, being more in line with what we expect of doctors treating physical conditions. We do not expect them always to be sure of the outcome before beginning treatment, but we expect their actions to be appropriate for the circumstances that confront them with a particular patient. Simply because deprivation of liberty may be involved in some cases of complex personality disorders, does not seem to me that mental health clinicians should be expected to have a greater gift of foresight, or should see greater beneficial clinical outcomes, than their physical disease counterparts.
	I have a good deal of sympathy with the difficult circumstances that psychiatrists may find themselves in as they attempt to make judgments about some of the complex personality disorders facing them, where deprivation of liberty is involved. However, I do not consider that we make their lives any easier by giving them either an unrealistic test—like "treatability" or therapeutic benefit—or no test at all, which effectively enables them to disengage from difficult cases where patients are serious risks to themselves or to others. That is the situation that we are in danger of getting into.
	The appropriate treatment approach places a professional clinical requirement on clinicians, but also allows professional judgment to be exercised. It is not a deterrent to the development of services for people with personality disorders in the way that the treatability test has been. It is, however, still a test against which allegations of poor professional practice can be assessed, so it provides safeguards for patients. It also provides greater public protection, by ensuring that clinical services are provided to those who need them if their disorder is to be tackled, rather than allowed free rein in the public arena. It is a better way of ensuring services are provided than we have now, and we should support this approach and not pursue the route proposed by the amendments. They are retrograde steps that would damage service development to patients and the wider public.
	I say very firmly to the noble Earl, Lord Howe, who raised the issue of human rights, that I do not believe that the present provisions on replacing the treatability test with appropriate treatment run counter to the European Convention on Human Rights. I took the best legal advice that was available to me as a Minister on this issue before I signed the statement on the Bill's compatibility with the convention. All Ministers have to make that judgment, as a result of the Human Rights Act. We take those decisions very seriously. The Bill is compliant with convention rights, and I do not believe that the appropriate treatment test is a challenge to those rights. On those grounds, we should not go in for what is tantamount, if I may say so, to a wrecking amendment of a major part of this Bill by going down the path of this group of amendments.

Lord Alderdice: It is rather important to be clear about what we are discussing. We are speaking about legislation the purpose of which is to legally facilitate compulsion. When comparisons are loosely drawn with the question of physical treatments, one should ask oneself what precisely are the contexts in which patients are forced to accept physical treatments? When a patient has a brain tumour, the surgeon is required to receive the patient's informed, written consent, for without it, it is a gross assault. Over the past few years, we have all been made very aware of the absolute requirement for full, informed, written consent. We are talking about legislation the whole purpose of which is to go in precisely the opposite direction and to ensure that, against the patient's wishes, they are compelled to accept treatment.
	I feel, very much like my colleague the noble Baroness, that this clause is actually the key to it all. In many ways, it sets psychiatry right back 150 years. What do I mean by that? Some 150 or 200 years ago, people who were unacceptable because of their behaviour were locked up in jails or put into asylums of various kinds; and that was the progressive step. A few courageous doctors—and in many of these places there were not doctors at all—went out to work. They were called alienists because they were prepared to go out to places where there were no treatments of any kind. It was a question of containing a bunch of people who were very difficult to cope with and manage, who had a whole assortment of problems. What sort of problems were they? Some were organic problems; tertiary syphilis and other infections that left people in a physical and mental mess. Some were psychotic disorders, manic disorders, and a range of what we now know as schizophrenic disorders. Those diagnoses were not even available then.
	Why? Because it was all just a bunch of people who were disordered in their heads because of alcoholism, drug addiction—of a very different kind to that talked about now—and criminality. Then there were all the young women with moral imbecility: the ones who had had children out of wedlock. I well remember seeing an 85 year-old when I was a junior doctor who had been in a mental hospital since her early 20s because she had had a child out of wedlock. I was seeing her because she was demented, having been there all her life.
	Mental disorder, undifferentiated, meant that they were all put away when they were causing trouble. As time went on, some alienists began to try to differentiate. Were there any differences between all these people with mental disorder? It became clear that there were. Some had infections; some had psychotic disorders; some suffered from the effects of chemicals, including drugs, alcohol and so on. Some should not have been there at all. Some were petty criminals. Over many decades of careful and painstaking work, spending huge amounts of time with these people—often raising their families in the context of these mental hospitals as a way of spending enough time with these patients to find out what was going on—it gradually became apparent that they were dealing with whole different kinds of things, requiring different kinds of treatment.
	Why did the changes mentioned by the noble Lord, Lord Soley, happen in the late 1950s and early 1960s? They happened because of the discovery of such drugs as chlorpromazine and amitriptyline. The discovery of anti-depressants and mood-stabilising substances meant that people with bipolar disorders, as they came to be known, could get out. Patients with the range of schizophrenia and paranoid psychoses could have their symptoms dampened down. They were not cured, but their symptoms could be dampened down in order that they could be managed in the community. Most of them did not have personality disorders, in the terms that we are describing now, at all. Psychopaths ended up in prisons, in the Army and in various other places. They were not in hospitals. There were some alcoholics and people at the end of their tether from that point of view, and there was a lot of tertiary syphilis still around. The antibiotics, phenothiazines, anti-depressants and mood stabilisers enabled people to get out into the community. It was not that people with personality disorders were better.
	What are we doing in this Bill? We are going right back to lumping everybody together under mental disorder—except for alcohol and drug addiction, because even the Government know that if you put that lot in, the whole thing will collapse completely in practical terms. The rest are lumped together under mental disorder, as though it were all the same thing. When it comes to treating these people the first thing you do, as a responsible doctor, is to try to make an assessment to discover what you are dealing with.
	I am a psychotherapist by conviction and practice. If I am dealing with a psychotic disorder I will nearly always use some medication to try to help contain the disorder and protect the healthy part of the personality, in order that I can work with that. However, if I am dealing with somebody who has a personality disorder, I will almost never give them medication. It is rare to try to treat them in that way because it does not help and creates further difficulties down the line. That is different from how you would deal with a person suffering from alcoholism per se, as distinct from alcoholism in the context of a personality disorder. That, in its turn, is different from dealing with a neurotic disorder, an organic psychosis, or some other kind of deterioration. You try to see the differences in these things and treat them in different ways.
	I am very familiar with the kind of problem mentioned by the noble Lord, Lord Soley. East Belfast is not a notoriously peaceful part of the world where everybody gets along perfectly. I was a Belfast city councillor and an elected representative for the Assembly; I am more than aware of all the complaints about neighbours from hell and difficult people. I am also aware that sometimes wrong diagnoses are made; a personality disorder is described when it is not that at all, but a psychotic disorder that should be treated as such. However, bad psychiatry does not justify bad legislation. I find myself trying to deal with young people with alcohol and drug addiction problems. We are going to have to try to create a service that is not about medication, but quite the opposite. Let us try to establish degrees and other forms of training in psychotherapy, which did not exist in Northern Ireland. When you set these things up, can you get the resources to make them happen? No.
	My mailbox at the moment does not contain letters about the enormous growth of services for people with personality disorders. People write to me because the Henderson Hospital is being closed down, along with other facilities where people are being trained and have been working on these things for 30 or 40 years. They cannot get the resources to continue. When I look at my own facility on trying to admit somebody, what do I find? Is it possible to provide the appropriate treatment? Increasingly, mental hospitals provide only custodial care.
	You cannot even keep the trained staff that you have got, because they are falling ill, taking leave or taking early retirement. They are getting out, because they are dealing with only incredibly disturbed people of various kinds and cannot manage to keep their own heads together, never mind the heads of people like the young psychotic patient, who, from the one, sane bit of her head, said to me, "Look doctor, please don't have me go in—I know that I am really disturbed at the moment, but if I go in there, I am going to be worse". I had to say to her, "I know that you're right". It was actually true, and we tried to find another way of managing her. That is the reality of trying to work in such circumstances.
	I know that the kinds of problems that the noble Lord, Lord Soley, has described exist; but the question is: what are they about? Are they about individual mental illness? Most of the cases that he spoke of are not mental illness. Disturbances of personality will not be dealt with by the prescription of medication, for example. If you were going to provide some kind of approach that the noble Lord would understand, where would that come from? You could not simply say that it was all for psychiatrists to deal with. Psychiatrists are running away; they are avoiding these difficult people. Maybe part of the reason for that is because, when they have analysed the situation, they say, "I know perfectly well that I can't resolve this problem. Not because I don't want to, or I am not interested, or I want a comfortable life". This is not fundamentally that kind of problem.
	I have an interest in terrorism and in dealing with conflict. Lots of people say, "These terrorists are mad, crazy and bad. They are psychologically distorted". I have applied my energies to thinking about how psychology and social psychology apply to these people. It does, but not on an individual basis. What disturbs me about this whole approach is that the work of psychiatrists over decades, in trying to clarify the appropriate diagnosis—where does this come from, what is it about, what is the ideology, what is the prognosis of the disorder, what is the appropriate treatment, what is the package of treatment that we must give to this patient that is different from that for another patient?—is being destroyed by trying to deal with a social problem that is not necessarily susceptible to such an approach; it involves bunging them all back into a big bag that says, "Keep them out of there because my House of Commons mailbag is too full of complaints".
	That is understandable—it is a frustration and a real problem—but if we try to make psychiatry bear the burden of it, you will not solve it; you will wreck psychiatry and you will not do any justice to the benefit of healthcare. It is not a question of denying people services. These services do not exist in most cases. What you can do is to ensure that there is support for people in the health service who are already massively overburdened in providing the care that they already provide, and who find that they cannot continue to cope at all, rather than moving things forward to some kind of utopia that tries to deal with all of these problems.

Baroness Finlay of Llandaff: The hour is late. However, I should like to quote very briefly from the United Kingdom's Disabled People's Council's brief on this part of the Bill. It feels strongly about the provision. It is the only umbrella organisation run and controlled by disabled people, representing more than 100 organisations of that type dealing with different impairments and health conditions including mental health. Its describes its view as follows:
	"we would see appropriate treatment as an open door for the inappropriate use of drugs for people with learning difficulties. This is because there is no need to consider what is 'best' or what would be of therapeutic benefit to them. If the circumstances are, for example, that staff or family members are at risk of being hurt by someone with learning difficulties behaviour then this may well be considered as relevant circumstances which should be taken into account when deciding to prescribe drugs. And further, drugs may be inappropriately prescribed ... if other forms of appropriate treatment like establishing alternative communication methods are not currently available".
	It goes on to point out—it seems glaringly obvious—that,
	"compulsory treatment should only be given when other (voluntary) treatment options can not provide the desired benefit".
	The council is focused on the benefit. It is the lack of benefit within the Bill that it fears so much.

Baroness Barker: Will the Minister address two questions which arise from what he has just stated? He spoke about patients seeking to evade treatment by claiming that their conditions were not treatable. The noble Lord, Lord Warner, too, mentioned that in his speech. Can noble Lords opposite give evidence of the nature and extent of that problem within mental health services? I would like to know how big a problem that is in reality, because, if we are going to accept the Government's arguments, it is right to have some evidence.
	In addition, given how wide the Minister has begun to draw the definition of "appropriateness", how confident are the Government, and on what basis, that their wide definition of "appropriateness" will not be open to just as extensive an amount of challenge? Although I am a lay person, I can well picture lawyers and representatives pitching up to mental health review tribunals to argue till the cows come home about what exactly "appropriateness" is and whether it can be determined by their age, race and where they live.
	The noble Lord, Lord Soley, referred on Monday and again today to mental health review tribunals as a great safeguard within the mental health system. My understanding—I ask noble Lords to correct me if I am wrong—that it is the job of mental health review tribunals to interpret the implementation of the law, whatever the law happens to be. They are not in themselves a safeguard; they are a safeguard for the law. Therefore, in future, were these provisions to be accepted, tribunals would extensively have to interpret what the word "appropriate" meant.